Chapter XI
Limitations On Government Power

11.1 The Alternatives-Limited Or Unlimited Government

      Up to this point we have been discussing the powers which have been delegated to government. We now turn our attention to limitations on those powers. We have already examined this problem to some extent as we considered the extent of delegated power. However, its transcendent importance justifies separate treatment.

      The proposition, that there are limits to the power of government is not accepted by all people. The contrary view that those in control are answerable only to themselves and that the citizen possesses no rights which are immune from seizure has been and still is quite common. During certain periods in the past a belief in the “divine right of kings” was almost universal. According to that doctrine the king or potentate could do no wrong. He could deprive his subjects of their lives, liberties and property for any purpose his sovereign will might dictate and no one could properly question either his authority or his motives. He was regarded with superstitious and reverential awe-as a personage of superior, if not infallible, wisdom, virtue and judgment. His right to reign and the corresponding duty of all to obey were not matters for debate.

      Today those who contend that there are no limits to government power have generally rejected the “divine right of kings” philosophy and have substituted in its place a belief in the “divine right of the majority.” To such people the majority can do no wrong. As long as the police power is being used to do the will of the most numerous part of society, the act is proper regardless of its nature. This is the sole test of right and wrong in government action.

      Those who believe in unlimited government power must reject the doctrine of the unalienable rights of man because the two positions are inconsistent. Once it is concluded that those who control government may use its power for any purpose they choose, it is also [p. 136] concluded that the citizens have no rights which are beyond its reach. If the ruling sovereign or majority are at liberty to pass any law they desire, and if under that law they can punish any who disobey, the people have no possessions or rights which cannot be taken. Their lives, liberties and property are at the disposal of those who govern.

11.2 Limitations On Government Power Under The Constitutional System

      Those who adopted the United States Constitution and established the American system rejected the idea of unlimited state power. Their underlying philosophy, as expressed in the Declaration of Independence, was that men possess certain unalienable rights which governments are to protect but never deny. They asserted that whenever any form of government becomes destructive of these rights, the citizens may alter or abolish it. The Revolutionary War was fought to affirm this basic principle.

      But the Constitution itself is the best evidence of their belief in limited government. By actual count it contains more restrictions and denials of power than it does grants. The Bill of Rights consists entirely of such restraints. Not only does the national charter limit the Federal, but the state governments as well. State constitutions contain additional limitations. Evidence that these restrictions are real is found in the fact that since the beginning of our Republic the courts have been engaged in deciding cases in which it was alleged that government had exceeded its limitations.

11.3 The Controversy Over The Meaning Of The Constitution

Have mercy, O Lord, upon all the nations of the earth; have mercy upon the rulers of our land; may those principles, which were so honorably and nobly defended, namely, the Constitution of our land, by our fathers, be established forever. (D&C 109:54)

In these days when there is a special trend among certain [p. 137] groups, including members of faculties of universities, to challenge the principles upon which our country has been founded and the philosophy of our Founding Fathers, I hope that Brigham Young University will stand as a bulwark in support of the principles of government as vouchsafed to us by our Constitutional Fathers. (Letter from President David O. McKay to Administration and Faculty of BYU, 1967)

      Even though our constitutions were drafted with great care, much diversity of opinion has developed over their meaning. While there may have been substantial agreement regarding the meaning of power-granting and withholding clauses in the Federal Constitution during the lives of the Founding Fathers, today there is widespread controversy.

      For example, there are now those who contend that the power given to Congress in Article 1, Section 8, “To lay and collect taxes ... to ... provide for the ... general welfare of the United States” gives it the authority to redistribute the wealth of its citizens and even to make of America a fully socialized nation if those in office desire this to happen.

      Another clause in this same section says that, “The Congress shall have power ... to regulate commerce ... among the several states ...” According to some, this provision authorizes the national government to regulate and control every phase of the nation’s economic activities, including labor and agriculture, finance and banking, transportation and communication, mining and manufacturing, trades and professions, education and welfare.

      Others take the position that these clauses do not authorize these powers in the least degree, and they point to other provisions which they assert specifically deny them. They may cite as their authority Article V of the Bill of Rights which says: “No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

      Which of these opposing views is right; or are they both wrong, with the correct answer lying somewhere in between?

On every question of construction, carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. (Thomas Jefferson, Works, Vol 12, p. 257, Fed. Ed.) [p. 138]

      It is extremely difficult, if not impossible, to take a certain provision of the Constitution, isolate it from the balance of the instrument and determine its correct meaning. One sentence or even one paragraph standing alone may logically be interpreted in a variety of ways. But when read in connection with the entire document and as a necessary part of the overall plan or purpose of those who adopted it, its true meaning may become clear. Let us use this approach in our attempt to determine the limitations on the power of government under our Constitutional system.

11.4 Government Shall Not Act Contrary To The Purposes For Which Formed

And now, verily I say unto you concerning the laws of the land, it is my will that my people should observe to do all things whatsoever I command them.

And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.

Therefore, I, the Lord, justify you, and your brethren of my church, in befriending that law which is the constitutional law of the land;

And as pertaining to law of man, whatsoever is more or less than this, cometh of evil. (D&C 98:4-7)

That they may be conferred upon us, it is true; but when we undertake to cover our sins, or to gratify our pride, our vain ambition, or to exercise control or dominion or compulsion upon the souls of the children of men, in any degree of unrighteousness, behold, the heavens withdraw themselves; the Spirit of the Lord is grieved; and when it is withdrawn, Amen to the priesthood or the authority of that man. (D&C 121:37)

      The most obvious, the most logical, the most precise limit on government power is this: It shall not act contrary to the purposes for which it was created; it shall not destroy that which it has a duty to preserve; it shall not perform those acts it was directed to forbid and punish.

      When those who established our American Constitutional system of government directed it to preserve freedom, they impliedly forbade it to destroy freedom. By authorizing it to protect the right of private property, they denied it the power to abrogate this right. [p. 139] By assigning it the duty to enforce a Christian code of morality, punish crime and dispense justice, they obligated it never to violate that code, commit crime or act unjustly.

      It is assumed that Americans of today are in agreement with the objectives of our Founding Fathers as set forth above. If so, we are also agreed that our governments are without power to act contrary to these purposes. But the critical question is: when are they doing the one and when the other? When are they preserving freedom and protecting the right of private property and when are they acting in opposition to these objectives?

      Is it realized that every law they adopt and every act they perform which does not have the effect of accomplishing these purposes has the opposite effect of defeating them? Because of their very nature — the fact that they use force to accomplish their purposes governments do either good or evil each time they act. Never are the results without moral consequence.

      Whenever government uses force and the threat thereof to compel obedience, it unavoidably deprives those affected of either life, liberty or property. If the law is obeyed out of fear of punishment, liberty of action is affected. If it is disobeyed and the punishment inflicted, either life, liberty or property is taken. The purpose and effect of every law is to deprive the citizens of one of these three possessions. But it cannot do this without committing either good or evil because there is no question of greater moral significance than that of determining when it is right to take from a person his life, liberty or property. From this it must be concluded that under the American system, government acts contrary to those harmonious purposes for which it is established whenever it passes any law whatsoever which does not have the effect of achieving these purposes. These purposes define the exact limit of its power.

11.5 Laws Within And Without The Limits Of Government Power

      Let us examine some of the more familiar types of laws for the purpose of determining whether they are within the limits of those powers granted to accomplish the purposes of our American system of government. [p. 140]

      By inflicting punishment on a criminal, government does not contradict its purposes; it does not deprive him of his natural right to life, liberty or property. When he intentionally violates his duty to refrain from crime, he forfeits his right to the possession taken from him as punishment.

      Neither does it act contrary to its purpose of protecting private property when it compels the performance of duties between citizens. By forcing a debtor to discharge a debt, it does not take from him anything he has a right to retain. It merely transfers to the creditor that which is rightfully his.

      And when a taxpayer is compelled to bear his fair share of the tax burden or the obligations of national defense, his property rights and freedom are not violated. If these duties were not performed, his rights and freedom would not be protected.

      But when government has performed these functions, it has completed its assigned tasks and reached the limit of its powers to use force. Anything beyond this destroys man’s rights. For instance, when it enforces licensing, regulatory and welfare state laws, it does not protect freedom, the right of private property nor liberty of contract. Neither does it obey the code of private morality, punish crime nor dispense justice. On the other hand, it acts in opposition to each one of these objectives.

11.6 Limited vs. Unlimited Government

      Perhaps there is no better way of understanding the American system of limited government power than by comparing it with one whose powers are unlimited — the Communist form. These two governments are the very antithesis of each other. They have nothing in common and everything in opposition.

      The American system was designed by men of deep religious faith and high moral standards. They adopted as their national motto: “In God We Trust.” In contrast, the founders of Communism were avowed atheists committed to the destruction of religion and the family along with the moral principles they exemplified and taught.

      The Constitution provides for a federal system with the powers of government first divided between the national and the states and a second division within each. The Communist form is a centralized, [p. 141] all powerful dictatorship. The American system gives the people the right to elect their own leaders and alter their laws. Communism denies all rights of self-government. The Constitution contains a Bill of Rights and other detailed limitations on government power. The Communist state recognizes no limits on its power whatsoever.

      But the distinction between limited and unlimited power is most clearly seen when a comparison is made between the objectives of the two systems with respect to the right of private property. The Constitution expressly guarantees this right in the same clause of the Fifth Amendment in which it protects the rights to life and liberty. And in this same clause is found this restriction: “nor shall private property be taken for public use without just compensation.”

      On the other hand, the police power under Communism is used to deny private property rights. The Communist Manifesto, which is generally recognized as the ultimate authority for Communists the world over contains a statement of the basic purposes and program of their form of government, says this: “...the theory of the Communist may be summed up in the single sentence: abolition of private property.” At another point in this document is found this sentence: “The Communist revolution is the most radical rupture with traditional property relations.” The Communist state is completely socialistic. Its ownership and control over property is unlimited. Private ownership and control is forbidden.

      Of utmost importance to those who believe in the American system and desire its preservation is the plan outlined in the Manifesto to convert all political systems over to Communism. The avowed purpose of the Communists as stated in the Manifesto is to over throw all governments and replace them with a Communist form having unlimited power.

11.7 The Method Of Converting Capitalism Into The Communist System

      The method proposed in the Manifesto for replacing Capitalism with Communism is by destroying the right of private property. This they plan to accomplish by inducing the governments of capitalist nations to adopt, over a period of time, a political platform which will ultimately have this erect. Let us quote from the Manifesto [p. 142] itself regarding how the plan is to work:

We have seen above that the first step in the revolution by the working class is to raise the proletariat to the position of ruling class, to establish democracy.

The proletariat will use its political supremacy to wrest by degrees all capital from the bourgeoisie, to centralize all instruments of production in the hands of the state, i.e., of the proletariat organized as the ruling class, and to increase the total of productive forces as rapidly as possible.

Of course, in the beginning this cannot be effected except by means of despotic inroads on the rights of property and on the conditions of bourgeois production; by means of measures, therefore, which appear economically insufficient and untenable, but which, in the course of the movement outstrip themselves, necessitate further inroads upon the old social order, and are unavoidable as a means of entirely revolutionizing the mode of production.

These measures will, of course, be different in different countries.

Nevertheless, in the most advanced countries the following will be pretty generally applicable:

      Then are listed the famous ten points of the Communist Manifesto which are as follows:

1.       Abolition of property in land and application of all rents of land to public purposes.

2.       A heavy progressive or graduated income tax.

3.       Abolition of all right of inheritance.

4.       Confiscation of the property of all emigrants and rebels.

5.       Centralization of credit in the hands of the state by means of a national bank with state capital and an exclusive monopoly.

6.       Centralization of the means of communication and transport in the hands of the state.

7.       Extension of factories and instruments of production owned by the state; the bringing into cultivation of waste lands, and the improvement of the soil generally in accordance with a common plan.

8.       Equal obligation of all to work. Establishment of industrial armies, especially for agriculture.

9.       Combination of agriculture with manufacturing industries; gradual abolition of the distinction between town and country by a more equable distribution of the population over the country.

10.       Free education for all children in public schools. Abolition of child factory labour in its present form. Combination of education with industrial production, etc. [p. 143]

11.8 The Implementation Of The Plan Of The Manifesto

      The Communist Manifesto has been termed “the starting point of the modem socialist movement.” (Encyclopedia Britannica, 1960 Ed., Vol. 20, p. 881) And it is generally agreed that its proposals for imposing socialism world-wide have been largely incorporated into the laws of every nation.

      Again quoting from the Encyclopedia Britannica:

The idea of socialism, which until World War I had inspired labour movements almost exclusively in the West, already manifested itself in the interwar period, both as Social Democracy and as Communism in some Asian countries, and after World War ll spread rapidly all over the globe. (Ency. Brit. 1970 Ed., Vol 20, p. 756A)

      The adoption of the Communist plan here in the United States might be more clearly seen if we note the three main methods governments use in destroying the right of private property and how the licensing, regulatory and welfare-state laws which have been so widely adopted both on a Federal and state level, fit into each category. Those methods and the laws which implement them are:

(1)       Prevent people from acquiring property in the first instance.
a. Licensing laws.
b. Labor laws.
c. Zoning laws.

(2)       Confiscate private property and property rights thus transferring ownership to government.
a. Graduated income, estate and gift tax laws.
b. Welfare state laws.
c. Laws providing for housing, irrigation and power projects, flood control and parks.
d. Laws which have abolished the gold and silver standard and substituted irredeemable paper money.

(3)       Regulate the people in their use of the property so that control over it is placed in government and taken from private hands.
a. No list will be attempted here because of the enormous number of laws which should be included. It is merely noted that it would include all of those enactments by legislatures, agencies and commissions by which government regulates agriculture and labor, finance and banking, transportation and communication, mining and manufacturing and virtually every other economic endeavor. [p. 144]

      A statement by President David O. McKay concerning the position of The Church of Jesus Christ of Latter-day Saints on Communism.

In order that there may be no misunderstanding by bishops, stake presidents, and others regarding members of the Church participating in nonchurch meetings to study and become informed on the Constitution of the United States, Communism, etc., I wish to make the following statements that I have been sending out from my office for some time and that have come under question by some stake authorities, bishoprics, and others.

Church members are at perfect liberty to act according to their own consciences in the matter of safeguarding our way of life. They are, of course, encouraged to honor the highest standards of the gospel and to work to preserve their own freedoms. They are free to participate in nonchurch meetings that are held to warn people of the threat of Communism or any other theory or principle that will deprive us of our free agency or individual liberties vouchsafed by the Constitution of the United States.

The Church, out of respect for the rights of all its members to have their political views and loyalties, must maintain the strictest possible neutrality. We have no intention of trying to interfere with the fullest and freest exercise of the political franchise of our members under and within our Constitution, which the Lord declared he established “by the hands of wise men whom (he) raised up unto this very purpose” (D&C 101:80) and which, as to the principles thereof, the Prophet Joseph Smith dedicating the Kirtland Temple, prayed should be “established forever.” (D&C 109:54) The Church does not yield any of its devotion to or convictions about safeguarding the American principles and the establishments of government under federal and state constitutions and the civil rights of men safeguarded by these.

The Position of this Church on the subject of Communism has never changed. We consider it the greatest satanical threat to peace, prosperity, and the spread of God’s work among men that exists on the face of the earth.

In this connection, we are continually being asked to give our opinion concerning various patriotic groups or individuals who are fighting Communism and speaking up for freedom. Our immediate concern, however, is not with parties, groups, or persons, but with principles. We therefore commend and encourage every person and every group who is sincerely seeking to study Constitutional principles and awaken a sleeping and apathetic people to the alarming conditions that are rapidly advancing about us. We wish all of our citizens throughout the land were participating in some type of organized self-education in order that they could better appreciate what is happening and know what they can do about it. [p. 145]

Supporting the FBI, the police, the congressional committees investigating Communism, and various organizations that are attempting to awaken the people through educational means is a policy we warmly endorse for all our people.

The entire concept and philosophy of Communism is diametrically opposed to everything for which the Church stands — belief in Deity, belief in the dignity and eternal nature of man, and the application of the gospel to efforts for peace in the world. Communism is militantly atheistic and is committed to the destruction of faith wherever it may be found.

The Russian Commissar of Education wrote: “We must hate Christians and Christianity. Even the best of them must be considered our worst enemies. Christian love is an obstacle to the development of the revolution. Down with love of one’s neighbor. What we want is hate. Only then shall we conquer the universe.’

On the other hand, the gospel teaches the existence of God as our Eternal and Heavenly Father and declares: “...him only shalt thou serve.” (Matt. 4:10)

Communism debases the individual and makes him the enslaved tool of the state, to which he must look for sustenance and religion. Communism destroys man’s God-given free agency.

No member of this Church can be true to this faith, nor can any American be loyal to his trust, while lending aid, encouragement, or sympathy to any of these false philosophies; for if he does, they will prove snares to his feet. (President David O. McKay, Conference Report, Apr., 1966, pp. 109-110)

I was due here two weeks ago, and had a theme to deliver which I thought was timely and appropriate, but I come with another theme this morning — “Two Contending Forces.” Those forces are known and have been designated by different terms throughout the ages. In the beginning they were known as Satan on the one hand, and Christ on the other ... In these days, they are called “domination by the state” on the one hand, “personal liberty” on the other; communism on one hand, free agency on the other ... Students, two forces are at work. There might be a conflagration such as the world has never known. Mankind will have to choose the one course or the other. (President David O. McKay, Speeches of the Year, BYU, May 18, 1960)

      (See Also: Ether 8:22-25; 1 Ne. 14:9-16; Hel. 4:22; 5:2; 6:38-39; 7:4-5, 25; 8:1-4; 3 Ne. 6:20-30; 7:1-2, 6; 9:9) [p. 146]

11.9 The Effect Of Substituting Unlimited For Limited Government Power

Thus, today, brethren, we are in danger of actually surrendering our personal and property rights. This development, if it does occur in full form, will be a sad tragedy for our people. We must recognize that PROPERTY RIGHTS ARE ESSENTIAL TO HUMAN LIBERTY.

Former United States Supreme Court Justice George Sutherland, from our own state, carefully stated it as follows:

‘It is not the right of property which is protected, but the right TO property. Property, per se, has no rights; but the individual — the man — has three great rights, equally sacred from arbitrary interference; the RIGHT TO HIS LIFE, the RIGHT TO HIS LIBERTY, and the RIGHT TO HIS PROPERTY. The three rights are so bound together as to be essentially ONE right. To give a man his life, but deny him liberty, is to take from him all that makes life worth living. To give him liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.” [From a speech before the New York State Bar Association, January 21, 1921] (President David O. McKay, Conf Rep. Oct. 1962, p. 6)

      There are a number of enormously important consequences which attend the transition from limited to unlimited government power-or from the Constitutional system to socialism which is the same thing. Among these are the practical changes wrought in the economy of the nation. An entirely different set of problems are encountered by those who work in the two systems. As the change occurs the student and practitioner of business discovers less and less need for a knowledge of the principles of private business and contract law, and an ever-increasing need to know the current rules and regulations of government. Textbooks and courses in this area are devoting a much greater portion of their attention to relationships between business and government with a corresponding decrease in attention to unregulated relationships between private parties. However, much of this learning may have little practical value because it may become obsolete before it can be put to use.

      The most regrettable effect of the change, however, is on the character of the people. It alters their entire value system. That which was formerly evil the law has now made acceptable; and that which was once good is made no longer necessary or desirable. When government destroys the institution of private property, a long [p. 147] train of evils follows. The commandment, “Thou shalt not steal,” is legislated out of existence. Government engages in plunder on a massive basis under socialism and by its example justifies the citizens in doing likewise. If it is proper for government to steal, how can it be wrong for the individual to do so? The people are taught that they no longer need to respect the right of private property and when this happens, they tend to lose respect for all other human rights as well.

      There is a resulting loss of interest in freedom. Especially the youth who are raised up in the system and have experienced nothing else are unable to appreciate its value. They come to accept the laws which restrict them as necessary and proper. They cannot imagine how freedom would work. They are taught in the schools and elsewhere that it is for the good of the people that they are regulated.

      Socialism destroys the people’s sense of justice. The idea that each person is entitled to benefit from the fruits of his own labors is in diametric opposition to its underlying principle. Furthermore, the laws under which the socialist state is imposed are unjust because they provide for punishing those who are innocent of evil. They deny the citizens their rightful liberties and physically suppress those who attempt to exercise them.

      And finally, the adverse effect upon the family is one of the most lamentable of all. Socialism tends to destroy this organization and with it the very foundation upon which a moral society rests. Parents are relieved of the necessity of providing for, teaching and supervising their own children, and children are absolved from the obligation of caring for their parents. The consequence of this is to destroy family ties. The love and affection which these mutual sacrifices would otherwise beget are lost and with them the finer and nobler restraints of family tradition. No matter from what angle socialism is viewed, it is evil; and so are the welfare-state practices and regulatory measures which lead to it. It is the imposition by force of the doctrine of materialism and has the effect of suppressing and destroying that spiritual or moral nature of man which distinguishes him from the animals. A government with unlimited power is the greatest tragedy which can befall a nation. [p. 148]

...we must learn the principles of the Constitution in the tradition of the Founding Fathers.

Have we read the Federalist papers? Are we reading the Constitution and pondering it? Are we aware of its principles? Are we abiding by these principles and teaching them to others? Could we defend the Constitution? Can we recognize when a law is constitutionally unsound? Do we know what the prophets have said about the Constitution and the threats to it?

President Ezra Taft Benson,
“Our Divine Constitution,”
General Conference, Oct 1987

[p. 149]

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