Context, Reality, Debate
I recently took note of a young conservative who spoke at an event hosted by Sen. McCaskill’s staff. I wrote that, while I didn’t entirely agree with this young man’s arguments, his clarity of thought and stage presence were impressive for someone his age, perhaps signaling a future for him in Republican politics.
In addition to his public-speaking acumen, I also give this young man props for compelling me to revisit the enumerated powers of Congress in Article I, Section 8, of our Constitution and the associated, age-old debate about whether or not those powers should be strictly interpreted — i.e., should Congress pass laws that are not expressly allowed by its constitutionally defined powers?
In revisiting that subject, I considered not only Article I, Section 8, but also …
- The Federalist Papers, notably Nos. 41-44, authorship of which is generally assigned to James Madison
Selected commentary on the same
Additional commentary by Thomas Jefferson and Benjamin Franklin, both of whom (along with Madison) were referenced by the young man who spoke at the aforementioned event.
Thanks to the TMV readers who helped me identify several of these sources. After perusing them, I was reminded just how circumspect (conservative) our founding fathers were when discussing the powers granted to the national (central) government. In all fairness, they had to be circumspect about those powers in order to persuade the states to ratify the Constitution. The states were as fiercely independent as the men and women who settled them and then fought a war to secure their respective and collective freedom. Having just liberated themselves from the heavy-hand of one central government, the people of the states were understandably reluctant to submit themselves to another, unless that “other” was strictly limited in its authority.
This innate American wariness of central government has persisted. And frankly, I share that wariness. But I also recognize that we can’t ignore 222 years of history between the Constitution’s ratification and today. We can’t ignore what two centuries’ worth of Congresses and Presidents and Supreme Courts — progressive and conservative, Republican (Whig) and Democrat — have done to modify our national view on the rightful roles of central government. We can’t ignore the precedents that they established and that have been left in place, largely unchallenged.
To help illustrate this point in my latest commentary for St. Louis’ NPR affiliate, I went all the way back to the early 1860′s, the years of the Republican Party’s first governing majority. Obviously, there are other, more recent examples of Republican (and Democratic) use (and attempted use) of Congress’ implied rather than express powers, but I was limited in how much I could discuss by the radio station’s rules on the length of guest commentaries. In addition, it seemed that an illustration tied to the genesis of the GOP carried a certain dramatic effect that more recent examples might not.
19 Responses to “Context, Reality, Debate”
Pete
It may well be worth noting that the clash over enumerated powers goes back farther than the 1860's. Jefferson and Hamilton argued this point Hamilton advocated the creation of The First Bank of the United States. I know Republicans see the Federalist Papers as the holy grail of constitutional thought, but I would assert that they were largely a sales brochure to convince the states.
Hamilton's bank does follow from the strict interpretation of the constitution, but I'm not convinced that Jefferson's purchase of half a continent was either. The strict constructionist argument Jefferson put forth against Hamilton was equally strong when viewing the Louisiana Purchase.
The point I make is hopefully discernible, enumerated rights have been invoked when opposing someone else's actions, but blithely ignored if they get in the way of your designs. Not is not cynicism on my part, it merely reflects that even those who wrote the constitution found suitable justification to expand the strict constructionist view.
I really do need to edit before posting.
Good reading, Pete. We can't often reverse what is now accomplished fact (and which sets a precedent for more encroachment by Washington into what remain truly state and local affairs, properly, as well as the radically changed mindset that has become firmly established among so many Americans from the 1930s and the 1960s “revolutions” onward), but reading, thinking and understanding is always better late than never.
“It may well be worth noting that the clash over enumerated powers goes back farther than the 1860's.”
There's no real question here, especially since the Tenth Amendment reinforced this (as well as the Ninth, which establishes the reverse case for rights of the people — real “rights” as opposed to claims and demands the Left makes for benefits, entitlements, etc., in modern America). There's a fascinating ocean of thought on other arguments that I'll go into possibly at a later time, soon.
If you had gone back just ten years earlier, to the Compromise of 1850, you would probably have rediscovered the Fugitive Slave Laws.
In 1850, people who would soon enough claim the primacy of states' rights, expected the Federal government to do their bidding:
If you had gone back just ten years more, you probably would have rediscovered the Compromise of 1850, which included the Fugitive Slave Laws.
In 1850, people who would soon be claiming the primacy of states' rights were requiring the Federal government to do their bidding:
I disagree with his specific arguments, too, which is fine. This is an area where there is room for disagreement in the interpretation of the Constitution. I am happy he has read the Constitution and seems to believe in its principals. I am just hopeful that this young man embraces the whole of the Constitution, including rights related to due process, the establishment clause, our treaty obligations, and the need for a balance of powers. It seems like only a year ago, it was only liberals you heard expressing concern about how frequently the Bush administration was violating Constitutional prinicpals.
OK — time for more detail, which may help readers to grasp why, despite dishonest and disreputable abuse by lefties toward anyone who says or even hints at such things, why opposition to or skepticism of government expansion into health care and other direct relations with people and what the state and local governments should be doing instead, if at all, is not only resisted because what may be sought is the wrong way to do something, but because it's questionable whether Washington can do it _at_all_.
“The point I make is hopefully discernible, enumerated rights have been invoked when opposing someone else's actions, but blithely ignored if they get in the way of your designs.”
Though sometimes claimed when not happening, this _does_ happen sometimes by the Republicans when there's something _they_ favor and wish oversized Washington to do.
That does not negate the fact that the _powers_ of Congress were enumerated and that more generally, they were thus _limited_. What you frequently encounter as bogus argumentation ranges from the most pathetic equivocation (the General Welfare clause in Article One, Section Eight is referenced wrongly to justify [literally] “welfare” programs of all kinds by Washington), a deliberately ignorant or dishonest misconstruction of the Tenth Amendment (which begins by referring to the federal government) that “the people” may refer to the federal government as an agent of “the people”, the misuse of the Interstate Commerce clause (it doesn't in any way justify, for example, a federal minimum wage law for a barbershop in remote Iowa which sees no patrons visiting from out of state), references of any and all kinds to the Preamble (a main-line resort of losers of arguments), misconstruction of the Equal Protection section of the Fourteenth Amendment, and of course the often-misused Necessary and Proper clause.
There is no broad, unlimited power granted to Congress (to the federal government in Washington), and the fact remains to this day that the federal government's powers are _limited_ to those which have been granted to it or which reasonably follow therefrom (the real meaning of “necessary and proper”: if the feds can establish a post office, for example, it's not written but reasonably and properly follows, logically and also legally, that Washington can establish penalties in the law and enforce them, against harmful acts taken against the Post Office).
That the federal (and indeed, state and local) government must act in ways not set on paper earlier (such as how it may act, reasonably, with motor vehicles and aircraft, for example) is reasonable, but it is never an excuse for expanding the federal government beyond its proper scope and for it to encroach into what correctly are state and local affairs unless the feds have been granted powers (normally expressly in the broadest or most general instances, at least), and we have long diverged from this practice.
Related to that is the mindset that has changed from correct interpretation of the Constitution and of constitutional federalism, as this has been replaced decade by decade by a de facto (though so often not de jure) unitary nation with Washington not only over-growing but changing from a federal capital into a national capital. This not only involves the level of direct action by Washington with US citizens, but more importantly for so long now, how US citizens view Washington, not only primary but as principal or even often the only government they consider. What should be kept on as indirect, remote, and small relation as possible, the relation between Washington and the people, has been inverted, with not only large-scale direct involvement (substitution of Washington for state and local, proper, government relations) but also that people now look to Washington normally as the first, rather than properly the last or never, the resort of choice when government intervention of some kind is desired. Washington has overgrown its proper limits both legal and philosophical to the point where political life often is centered mainly or often truly exclusively on Washington (state governments and the concept and value of the states and what they should or shouldn't be really isn't important to many Americans nowadays and hasn't been, for ages).
Yes, we must expand the scope of Washington necessarily to account for the changes that come with time that often aren't accompanied by changes to the Constitution (and sometimes don't need to be made). More broadly, the formal establishment in the Constitution of federal (“national”) as well as state citizenship after the Civil War was strictly a mechanism for preventing discrimination (and at the time, only against black Americans), but it can be reasonably inferred from this (as well as informally) that if we have “national” citizenship, that does confer to Washington a broad, if unexpressed and unenumerated, set of powers. But that doesn't mean that Washington can do always whatever it wants (this is only an issue of size, power, and force, not that of right or logic or legality), or that judges can rule whatever they want (our Constitution is no more “living, breathing,” and subject to revision truly at whim any more than any other legal document, like a will or contract, or a law), or that “rights” (liberties, freedoms being the correct definition here, freedom from government and its authority, constraints, and power unless being granted to government) may be misconstrued in the modern sense to mean claims to this or that (such as health care, which obviously is not a right in our current constitutional system, nor a human right, etc.), nor is any other misconstruction acceptable. (During the Clinton health care fiasco in the earlier 1990s, some of us feared that the Ninth Amendment, which prevents Washington from limiting our rights or assuming such limitations by misinterpreting references to rights outside Washington as limited, unlike and opposite the case of enumerated and properly and reasonably associated and derived federal _powers_.) That strict constitutional federalism may upset so many on the Left (and a few on the Right) who are impatient with or contemptuous of limits to government (especially to Washington), and they may claim all kinds of silly rationales (such as that state sovereignty is outmoded or that states have no respect and deserve contempt, or that modern times with modern transport and communication make federalism obsolete or at least an annoying, frustrating encumbrance, etc.) but even if factual, they are irrelevent and improper.
What matters most at this time (because the growth of Washington and replacement of how things are defined to be with what actually _is_ has the support of so many, as well as proving sometimes to have actual appeal to many, even the skeptical) is to not merely continue to act in association with what is long-established accomplished fact, and a continued, increasing trend, but at least constrain future things to what is reasonable and sensible, and avoid rushing stupidly like children who might overeat or people who are reckless with other things, like their money or their property or their family members. Not likely to happen but worthwhile in this regard is the correct meaning more Americans are in need of recalling (from a legal work on federalism that addresses correct versus incorrect views in detail), in dealing with accomplished facts and trends. May they at least be braked, if not (better) arrested, even if they cannot be reversed (corrected). “Go and sin no more,” as the author notes, does yield to accomplished fact (what can be called “water under the bridge,” that can't be sought to flow backward), but it is not merely forgiveness, much less approval, but correctly advises, “Do not continue to engage in such misbehavior.”
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Real-world assessment of the current federal incrementalist takeover move in health care: The details of this effort are bad and merit rejection on that basis alone (this is simply the worst of a number of badly conducted efforts to hurriedly pass bad, badly-put-together legislation). Rejection is actually merited on the basis as well that Washington has not been clearly given power to provide health care to people (or to exercise control over this, which is what is being sought as well). However, th emodern welfare state model (arising out of the 1930s in all Western nations during a time of economic depression and unrest) has established a firm precedent for what governments do for its citizens and obviously there is US as well as state citizenship (almost entirely a “non-thing” to modern Americans, since the 1930s, too; the New Deal was truly our third revolution), which isn't and needn't necessarily have all its details listed, the intervention of Washington into health care in some form may be considered reasonable. And with the example of Medicare, we have a substantial precedent already in effect for decades of a working (in-practice) model for direct federal intervention and payment (provision and control) of health care. At this time, the current issues of concern, in my view, should be directed toward defects in the current effort (there are numerous defects and the entire year's record of the conduct of the people pushing this effort also should be taken into consideration when judging the known content and quality of the proposed new laws, as to how the execution will affect us all later), as increasing federal intervention is, to me, inevitable.
The interesting thing about the US Constitution, is that there is absolutely no power banned for the future. What I mean is, it includes a specific procedure for the changing of its own laws via Amendment. Thats why I do not for one minute buy into the argument that Congress or any other branch of government has a legal right to exercise power not enumerated by the Constitution. If the nation outgrows the old laws, then make an amendment, get it passed by 2/3rds of both Houses and have it ratified by the States. It is spelled out quite clearly. Our Founding Fathers formed a new great nation and called in the United States of America, the did not chose to call it “The United State of America”, and for good reason as they feared the takeover by an excessively powerful federal government and wished to keep large amounts of power as close to the people as possible.
In the years since then our nation has forgotten this as they wonder what the federal government can do for them and have been influenced by politicians who can bring home the earmarks and pork. The people have traded away much of the power and freedoms that were granted to them by the Constitution for the money that a federal government can bestow upon them, they have also ignored their responsibility to maintain those freedoms and that power. Its so much less hassle to let the government take care of everything for you and complain than to actually excercise the powers granted by the highest law of the land and take back individual freedoms and take back ownership of the nation.
As Ben Franklin said ” They who would give up an essential liberty for temporary security, deserve neither liberty or security”. Well we have reaped what we sowed as a people as out liberties have been eroded as has our security, as me let mother government tuck us in at night.
Maybe there are some thing the government now does for us that we as a people approve of by a supermajority, if so, lets give these solid legal footing and pass Constitutional Amendments that Constitutionally empower our government to continue to do these things, but let us not grant the government continued power to act in this matter without the levels of approval required by the Constitution.
The “tyranny of the majority” was a concern of Platos when democracy was concieved, it appeared in the Federalist Papers notably Federalist 10, it persisted in the thoughts of Alexis de Tocqueville who coined the phrase in his work Democracy in America, it was also in the works of John Stuart Mill, Nietzsche discusses it, as does Rousseau. We have been sufficiently warned of the danger, yet we sit by and let it overtake us, allowing ourselves to be swayed by the calming words of those who seek to benefit for sake of their own power and profit, and who throw us just the minimal amount of scraps that we will not bite the hand that feds them to us while keeping us from the learger and more choice portions that are rightfully ours. The power we have, the will to use it is what has been lacking. Like a herd animal we run from the lion, trying just to run fast enough so that he kills another member of our herd. If the entire herd turned and faced the predator the lion would be cowed.
DLS
Any time you want to address the Bank and the Purchase, please do.
Seeing as Jefferson helped devise this constitution, are you making the argument to do as I say and not as I do? If you're ready to get rid of the SEC, the FED, and the Mint, I'll drop the right to health care.
Hemm
” If you're ready to get rid of the SEC, the FED, and the Mint, I'll drop the right to health care.”
I'd take that deal, but under the condition that they were gradulaly phased out over years so as not to send so huge a shock to the system.
The biggest constructive law is based on “Santa Clara County v. Southern Pacific Railroad” where what was without a doubt the most corrupt supreme court ever ruled that the the Southern Pacific had “personhood.”
Now scaglia and crew have no trouble doing more to protect their childrens employers than even that false ruling allowed.
If there is “personhood” for corporations, then they should be liable to being indicted, tried and convicted for murder. I, off the top of my head, can think of at least 200 corporations that this should happen to, and if I wanted to waste my time, I'm sure I could dig up 5000 corporations that this should happen to.
It would be a total waste of time when the supreme court travesty before it became the supreme joke when the Puerto Rican woman was confirmed (six catholic out of nine justices are an unbreakable majority and should never been allowed to happen), ruled against individuals vs corporations 92 per cent of the time. This isn't justice, this isn't a travesty of justice, this is a sad sorry joke. Pretending that there is justice in the us is lying out your ignorant ass.
american lawyers and judges I rank inches below pimps.
1
That was then, an agrarian society, it no longer works for a metropolitan society. That is why the constitution is a living, changing document subject to contemporary interpretation. If not, our nation will undoubtedly have another revolution. Lack of more centralized power in government is exactly the reason for most of our woes today. Money dictates politics in American, not the people's will.
“That was then, an agrarian society, it no longer works for a metropolitan society. That is why the constitution is a living, changing document subject to contemporary interpretation.”
False as well as obviously illogical, but widespread, sad as that is, among so many on the left.
(It merits the additional gratuitious stab at selective lefties, who use this and other failed “arguments” to misconstrue their favored amendment or amendments while being dishonest as well as inconsistent about others. That icky First Amendment [which doesn't support degenerate behavior and other misdeeds using it as their bogus legal and argumentive cover], such an anachronism! We need to do away with that relic of oppressive males with powdered wigs!)
(Oops — that's one of the things Obama and other Dems are somewhat doing currently, in trying to suppress the public's ever-growing opposition to their health care lunacy)
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D. Hemm — did you read the end of the long posting I provided. Water under the bridge (accomplished fact and established precedents; widespread public support for them).
At this time I'm willing to be more honest (among other things) than my critics on the Left and take the initiative in an honest way that they have failed to take. Why not revise the Constitution to make what is commonplace and widely-sought finally legal, and even push it all the way to its logical end, in other words. Among other things, repeal the Tenth Amendment, formally establish complete federal supremacy and retention of all powers, express and implied, that aren't delegated to the states and localities (and in fact, state explicitly that this is the state of affairs, in other words), and then anyone can demand that Washington, their surrogate parent (if not god, in addition to being Fairy Godmother, Santa Claus, and the Tooth Fairy), do essentially whatever they want it to do for them and to others.
The lefties are incapable of doing it, and more importantly, the modern Washington couldn't be trusted to do a good job of it, or to behave right or well about anything like that in modern times — revise the various terms of office of federal officials, rationalize and redesign the states and counties and how they relate to each other, and so on.
“Also I'd nix the Department of Education, Department of Housing and Urban Developement as well, the States and local governments should be handling these areas.”
The correct rule of thumb in the present is that 2/3 or more of what Washington does should be done by state and local government instead — if, that is, it should be done by government anywhere, at all.
Unfortunately, post-1994 “devolution” (object of slander and worse by the Left) was what can be expected in today's Big Government status quo — largely a matter of shifting functions from one department to another (not even between Congress and the executive branch).
HemmD, how do your examples of how some have abused the constitution in the past justify our doing so now? Should we discard the document then? Yes, to some degree it may be a case of “do as I say, not as I do.” So what's? I'm not interested so much in what the founding father's did (in this I differ from some conservatives who revere them as semi-deity), or even in what they said, except for what is in the constitution, and their writings that specifically explain their intention in writing it (which is what makes the Federalist Papers so important). It was the consititution that our country was founded on, not the founding father's themselves, as great as they were.
And, with regards to the importance of the Federalist Papers, in addition to them being written by first-hand sources, I actually find the argument written in #41 to be a very good one, regardless of who it was written by. I can't put it nearly as well as Madison did, but basically the argument is this: if the “general welfare” clause truly gives congress the power to do pretty much whatever it wants, as long as it is the general welfare, what was the point of enumerating specific powers in the very same sentence. Was it to just give the congress, in its infancy, some ideas on what it might consider doing with its new all-encompassing power? I'm not buying that.
“That was then, an agrarian society, it no longer works for a metropolitan society.”
Besides the obvious point that has already been brought up, that the constitution provides for a mechanism to amend it, I'm curious to know why a metropolitian society inherently needs more power to the central government and positive rights given to the citizens. This point has been brought up multiple times as if it were a given, so excuse me if I'm just dim and require an explanation of what might be obvious to others. I'm honestly interested in in understanding this particular argument.
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