Constitutional Problems with Funding Science using Federal Tax Dollars

Prologue

Out of respect to those who may wonder why I maintain my controversial stance in declining to be the primary petitioner to the federal government for research money, I offer the following essay. My position ultimately stems from my devotion to the concept of liberty as the only means to obtain the eternal happiness of God's children. I firmly believe that the necessity of the Atonement of Jesus Christ was ultimately due to this inalterable fact. My commitment as a Christian requires me to honor the Atonement by upholding the concepts of liberty for which He suffered as I understand them. This belief and conviction may unavoidably color my interpretation of events, and therefore I offer it candidly.

Introduction

There are very good social and economic arguments that detail why tax-supported funding of science is actually harmful to society. Many of these are made in the ground-breaking work by Terence Kealey called The Economic Laws of Scientific Research . Another source of arguments against current trends in federal funding of science is the book Funding Science in America : Congress, Universities, and the Politics of the Academic Pork Barrel by James D. Savage. I will not be making economic arguments in this essay, but that should in no way imply that very good arguments cannot be made.

In this essay, I will restrict the discussion to the inherent legal problems with federal funding of science that arise from my sincere reading of the Constitution. In order to say I uphold the Constitution, I cannot with integrity support programs that obviously violate it. In addition, questions of what the government does ultimately come down to questions of when force and violence (or the threat of force and violence) should be used in society. As George Washington said (bold added),

Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.

This is an important point that is often ignored, but its implications are long-lasting. As a beliver in the revelatory gift of Joseph Smith (in his descriptions of how godly power is asserted in particular), I believe in the fundamental, divinely-appointed agency (or freedom) of men and women. I believe in the idea that all human beings are created equal in authority to one another. By authority, I mean simply the right to control one's own person and labor. The usurpation of that innate-authority by any outside person or organization by the use of force should never be done without serious justification (such as the person's violation of another's innate-authority---thereby showing their own disregard for the concept). With this in mind, I cannot blindly support the use of force in society no matter how wonderful I think the results would be. (It is interesting but only a side note to this essay that very often the wonderful results promised through the use of force never seem to materialize and typically backfire.)

When the United States was organized, an imperfect but profound charter document was established that in essence put limits on the use of federal force in society, by expressly limiting what the federal government could legally do. Therefore, when it comes to the activity of the federal government in collecting taxes from people using force and using them to pay for the funding of science, it is necessary to look at what the Constitution says. If we find that the Constitution does not authorize the federal government to fund science, then not only is that activity illegal, but it represents a usurpation of the innate-authority of human beings to decide for themselves how much and what kind of science gets funded.

What does the Constitution say?

Because all federal programs must ultimately rely on the Constitution for their justification, it is important to understand what the Constitution actually says. In reading the Constitution in a dynamic language such as English and trying to understand what the words communicate it seems rational to observe the council of Thomas Jefferson who in 1823 said:

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.

One of the largest contributors to the actual wording of the Constitution was James Madison and his attitudes toward its interpretation are indicated when he wrote:

I entirely concur in the proprietary of restoring to the sense in which the Constitution was accepted and ratified by the Nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more then for a faithful, exercise of its powers what a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

Indeed, it is a fundamental maxim of law to determine the intent of the authors of a statute before attempting to apply it. One of the original Supreme Court Justices, James Wilson, who signed both the Declaration of Independence and the Constitution and co-authored America's first book of legal commentaries on the Constitution made the common sense observation:

The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.

In light of these statements, it is prudent to describe the events surrounding adoption of the Constitution to acquire something of the "spirit manifested in the debates," so that we don't unintentionally "squeeze" or "invent" something out the text which it never did have the purpose of saying.

The government of the United States of America was founded on principles of liberty. The Constitution of the United States was ratified in an era when the thirteen colonies had each become independent states unified only in their desire for self-government. Versed in the writings of Locke, Hume, and other liberal thinkers, the framers created the best system they could conceive of that would attempt to preserve liberty for the people of their States.

Exactly what kind of government that should be was not immediately obvious to the people of the several states. Initially, in 1781, they had chartered the Articles of Confederation to outline some principles of their association that had primarily been established during the preceeding centuries and recently proved during the war with Britain. Some were unhappy with the demonstrated inability of the Articles to accomplish an effective union of the free states. The Constitution was carefully constructed by delegates from the states in an attempt to grant additional powers to a central government (e.g. raise money, enforce laws) while still maintaining the "inalieanable" rights and priviledges of individuals.

Not everybody in the States that were to ratify the new compact was completely thrilled with the document, seeing in it the potential for future abuse that would result in the rise of tyranny and the loss of liberty. People opposed to the adoption of a new compact have been labeled (by history) as Anti-Federalists. Their ranks included patriots such as Patrick Henry. To assuage the concerns raised by the Anti-Federalists several of the framers (James Madison, Alexander Hamilton, and John Jay) published articles in New York newspapers from the end of the Constitutional convention (1787) to the ratification (1789). This collection of letters has come to be known as the Federalist Papers and is one of the best means of assesing the "spirit manifested in the debates" because it contains elaborations of the meaning of the Constitution by its principle authors. They describe in more detail the nature of the compact to which the several States agreed.

What kind of Laws can Congress pass?

One of the purposes of the Constitution was to limit the powers granted to the central authority. It was well understood by the people of the day that the federal government was not granted arbitrary power to act in whatever fashion its members decided. The States ratified the compact only after the Ninth and Tenth ammendments were added to alleviate concerns that the strict limiting of powers granted the federal government would be quickly misunderstood. Amendment IX states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

while Amendment X is equally clear:

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 States that ratified the Constitution understood that for the central government to act, it had to be justified by some grant of power in the Constitution. This understanding was very clear to the third Supreme Court Chief Justice John Marshall who said:

When the Constitution is silent on a power and it is not incidental to another power, nor is it an expressly implied power, it is a prohibition [inhibition of that power].

Therefore, to examine the question of whether or not the federal government has authorization to fund science we must look for some grant of that right in the context of the original debates without trying to "squeeze" out an intention that was never there.

The Legislative branch is described in Article I. In the introductory sentences to Section 8 we can read:

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;

Many laws seem to base their justication on only these phrases which is ironic given that they are merely introductory explaining the purpose of the actual enumerations that follow. Following this introductory sentence, the next 17 phrases actually contain the enumeration of the limited areas in which Congress is authorized to pass laws. With regard to the general welfare there are 8 explicit powers granted and with regard to the common defense there are 7 powers granted. A final two enumerated powers complete the list. To avoid usurping authority, any act of Congress must rest its authority in one of these 17 enumerated powers or in one of the ammendments.

Unfortunately, since the ratification of the Constitution, and accelerating after the Civil War, the tendency has been to use the introductory sentences in order to justify any act of Congress whatsoever. The enumerated list of powers has become superfluous as there is rarely a member of Congress who feels compelled to uphold his oath of office and live by the strict enumeration given. Furthermore, the executive and judicial branches are complicit in their lack of holding Congress to account for their negligence. The ultimate responsibility, however, lies with a sleepy public that has let the government shackles --- represented by the enumerated powers of the Constitution --- rust and corrode.

It has become exactly as the Anti-Federalists who opposed the introductory phrases feared. The following quote from James Madison, found in Federalist papers #41 is almost comical in light of today's broad use of the introductory sentences to Article I, Section 8 (bold added):

It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction...Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury; or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied by signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The previous quote was long, but it clearly shows the mind of the writers of the Constitution. According to Madison (himself a centralist and proponent of federal power) any law passed by Congress must rest on one of the 17 enumerated powers (or an ammendment). To Madision, anyone suggesting that the introductory sentences would be used to justify Congressional action was straining at gnats and reaching for outrageous excuses to discourage adoption of the Constitution. Unfortunately, the "stooping" Anti-Federalists were right. It would appear that what looked like gnats 200 years ago have become the camels we regularly swallow as citizens of the United States today.

Can Congress use Tax Dollars to Directly Fund Science?

It should be clear that Congress should only pass a law if it is explicitly authorized to do so by the list of enumerated powers found in the Constitution. It should also be clear that when Congress passes a law it is implicitly stating that the use of force (even deadly force if inital compulsion is resisted) is justified to ensure the law is upheld. Therefore, when the law involves allocation of tax resources to scientists, Congress is proclaiming that force and coercion can and should be used to collect funds that will be delivered to scientists. This inescabable fact of what it really means to "allocate public funds" absolutely requires that we are vigilant in upholding at least the Constitution's limitations on what Congress can do.

So, what does the Constitution authorize Congress to do regarding the pursuit of scientific knowledge. There is exactly one enumerated power that Congress has that indicates anything at all about science. It is the 7th enumerated power which dictates that [Congress shall have the power]:

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;

In other words, the only power Congress has to promote science is to introduce what today we call copyrights and patents. Note, however, that the only purpose Congress can support through the use of patents and copyrights is the "progress of science and useful arts" and any "securing" that the government uses its coercive power to accomplish must be for limited times.

With this one enumerated power in mind it is extremely enlightening to realize that the Constitutional convention actually considered whether the federal government should be specifically empowered to directly aid academic research and rejected the idea. In particular, one specific ammendment that was rejected stated:

To secure to literary authors their copy rights for a limited time, To establish a University, To encourage, by proper premiums and provisions, the advancement of useful knowledge, and discoveries.

Another ammendment that was also rejected sought to give Congress the power

To establish seminaries for the promotion of literature and the arts and sciences, To grant charters of incorporation, To grant patents for useful inventions, To secure to Authors exclusive rights for a certain time, To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures.

Either of these two ammendments would have given Congress the explicit power to hand money directly to scientists. The fact that they were considered but ultimately rejected should make it clear that Congress has no authorization whatsoever from the Constitution to use tax dollars to fund scientists. The fact that the government is today acting outside of its clear constitutional limits cannot justify or excuse this extension of the use of force on individuals in our society.

Conclusion

Personally, I love the pursuit of science and the useful arts, especially when this pursuit leads to direct improvement in the lives of others. I've spent the better part of my life involved with the pursuit of scientific knowledge. However, my respect for the freedom and self-authority of individuals as self-determining agents trumps all else. I cannot with integrity support the growing use of coercion in our society to accomplish a certain groups opinion of what constiutes "good ends" --- even if I agree that the ends are good.

I do not believe in the mantra that seems to be the founding principle of a naive majority that "the ends justify the means." The emptiness of this vague phrase becomes apparent when the more correct form of the phrase is obtained by turning it into the question that ultimately must be answered (either directly or by default): "Whose ends justify whose means?" Without the constraints of a limited government, the use of force in society marches to accomplish the ends of a self-selected few. Some may see this as desireable, especially when the few are Plato's philosophical elite. To me, such thinking is the height of hubris, and leads inexorably to moral, spiritual, and economic decay.

As God's children, humans have marvelous power: the power to choose, the power to make decisions, the power to act on those choices. This power that humans intrinsically have should be honored, celebrated, nurtured, and expanded. Though many seem interested in a better society, few seem willing to respect the divine right of choice that is essential to obtaining it. A better society cannot be accomplished by the coercive power of government edict. Only by the persuasive power of person-to-person enlightenment where the self-determinism of individuals is respected will the creative spark of each be harnessed to create a fire of knowledge that will grow to encompass all truth.

-Travis