My friend Rutherford’s latest post crows on and on about the skewing of the Constitution and original intent by the evil/stupid Tea Party and the members of Congress they elected and their coming epiphany brought on by opening of the 112th Congress with a reading of the Constitution.
His criticisms/snark were rooted in an interview given by Yale Political Science and Constitutional professor Akhil Reed Amar by noted tool and distorter Keith Olbermann. I’m going to link the interview, only because I want readers to understand what Professor Amar actually said, and not what Rutherford simplistically paraphrased. I’d also like to have it clearly understood what I am talking about when I call little Keefie out on some particularly bold hypocrisy…or at least it would be bold hypocrisy if I honestly thought he knew he messed it up. I doubt very much that he has ever read the Federalist Papers or the Anti-Federalist Papers. I can’t imagine anyone capable of doing so having the patience to help him grok some of the fairly nuanced points, and if left to his own devices, he would likely sprain,if not break his lips while struggling with the big words.
While it isn’t an accident that he used the word that he did, I think the choice of word enhances the misunderstanding that he advocates in favor of. Anyway, here is the link to the video. Don’t sweat it. Its seven minutes, but for purposes of this post, it is actually seven minutes that matter.
I’ll start with a little skewing that Keef does on his own. For someone who delights in droning on about how it is important to understand words, and criticising others for inserting words that aren’t there, he starts out with a little use of a word that wasn’t used at the beginning of the clip when he talked about the Framers writing in legislative powers “both vague and specific”. The problem is that the enumerated powers are not “vague and specific”, nor did the authors of the Federalist Papers that his expert cites, or their opponents the Anti-Federalists, consider them to be or refer to them as powers “both vague and specific”. Instead, they referred to these powers as “general”, and it makes a difference.
A statute is general when it operates uniformly on all persons and things of a class and such classification is natural, reasonable, and appropriate to the purpose sought to be accomplished. A law that is vague is indefinite, uncertain, and not susceptible to being understood. Laws are overturned for being vague. Still, I expect no better than that from a Cornell AG school grad. That’s why he has a TV show watched faithfully by tens and not a real job.
But, moving on, the professor first talks about the founders being the liberal nationalists of their day, and being true revolutionaries, implying a link to, and then declaring that they were the liberal democrats of their era because they were revolutionaries. This is the mix of the truth and a lie that is more pernicious than an outright lie.
It is true that they were revolutionaries. Never before had a western nation been formed without the auspices of a King. Never before had a nation existed that put so much stock in the rights of an individual and the citizen’s right to overthrow a government that reached so far as to usurp authority over those rights to the degree of rendering them moot. However, to say that they were the liberal democrats of their day is falsely self congratulatory, and not borne out by the facts of what they held dear, and what they valued, which was demonstrated in how they lived.
A liberal democrat is characterized by a secular humanist worldview, even when they don’t know what that means. This outlook embraces the ideal that man is the only possible source for his own salvation (“We ARE the ones we’re looking for.”) and generally regards the world through a philosophy that says that there is no problem that government shouldn’t be the solution to. That is how we have gotten to the point of special welfare (assistance in the form of benefits and entitlements for some, paid for by others, and distributed and administered by government), and the idea that it is actually “general welfare”. It is also how we have gotten to the point where the federal government has gained dominion over our light sockets and toilet tanks. They can also often be found so supportive of the right of free exercise of Christianity (which is, in fact a religion, and therefore subject to Constitutional protection) that they threaten and actually engage in litigation to prevent it in public fora in defense of the recently discovered Constitutional rights of non-believers to not be “offended” by such displays.
In contrast, a majority of the founders were not just religious people, but Christians, a fact demonstrated by the reasons for migration to the continent itself, especially in New England, and the fact that many states had officially recognized and endorsed certain sects of Christianity, even after the passage and ratification of the First Amendment, and the calling on the God of Christianity in official government meetings and procedures, such as the Constitutional Convention itself, where the document was debated and took form, to the official proclamations of Thanksgiving and Presidential Inauguration Speeches. They also would have been horrified at the idea of a Federal government having anything at all to do with basic education, or the idea of forfeiture of private property for a “common economic good”. They valued individual freedom, and at the same time adhered to a religiously-informed moral codification of law based on the perceived benefits to society, rather than seeking the creation of new rights without serious thought being given to whether it conferred any benefit to society at all.
This back patting continued through a cursory review of all the amendments being the work of these liberal democrat-like figures throughout our history. This presumably includes the noble 18th Amendment, which of course took liberties away from Americans, which is something that liberal democrats like to do, like when they decided to take away their right NOT to buy health care, or the right to buy their kids Happy Meals with toys in them. But those are individual rights that really don’t matter, right? After all, those “revolutionary liberal democrat-like” founders would be all in favor of an intrusive government and the policies of “nudge”, right? Let’s ask Thomas Jefferson:
“I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but inform their discretion.”
The professor moves on to point out that (surprise!) the Framers had actually intended for the federal government to be able to levy taxes, because the Constitution mentions it FOUR TIMES!!!!! ZOMG!!!!!11! He and Keith had a good chuckle about that, because those silly Tea Partiers don’t believe that the government has that right, which is all well and good, except I wasn’t aware of this being a “mainstream” Tea Party point. I thought the point of Taxed Enough Already wasn’t that the Federal government didn’t have the power to tax, but instead that they believed that the taxes paid were exorbitant, especially in light of the fact that Federal taxation is only a piece of the taxation puzzle for Americans, who also frequently pay taxes to states and municipalities as well, in the form of income taxes, sales taxes, property taxes, business taxes, personal and real property taxes, gasoline taxes, real estate transfer taxes, workman’s compensation taxes, 911 taxes, library taxes, ect. This was something foreseen by those eeeeeeevvvviiilll Anti-Federalists, by the way, as presented by “Brutus” in paper VI:
The general government is to be vested with authority to levy and collect taxes, duties, and excises; the separate states have also power to impose taxes, duties, and excises, except that they cannot lay duties on exports and imports without the consent of Congress. Here then the two governments have concurrent jurisdiction; both may lay impositions of this kind. But then the general government have supperadded to this power, authority to make all laws which shall be necessary and proper for carrying the foregoing power into execution. Suppose then that both governments should lay taxes, duties, and excises, and it should fall so heavy on the people that they would be unable, or be so burdensome that they would refuse to pay them both — would it not be necessary that the general legislature should suspend the collection of the state tax? It certainly would. For, if the people could not, or would not pay both, they must be discharged from the tax to the state, or the tax to the general government could not be collected. — The conclusion therefore is inevitable, that the respective state governments will not have the power to raise one shilling in any way, but by the permission of the Congress. I presume no one will pretend, that the states can exercise legislative authority, or administer justice among their citizens for any length of time, without being able to raise a sufficiency to pay those who administer their governments.
Now I will admit that the Federal government does not exert direct control over the ability of individual states to tax…yet. But it does have a say in the spending priorities of the states because of the way that it distributes money…often with strings that require the establishment and maintenance of various programs, which restricts the ability of individual states to independently choose their spending priorities at times when their budgets are hurt by falling tax revenues due to bad economies or high tax rates, or both. This is actually far more insidious because it is one more usurpation of the authority of the individual states. This problem also took an unforeseen turn because of the fact that bulk of federal taxes are raised by permanent taxes on income, which was not contemplated by the taxing language to which Amar refers, as it specifically names duties, imposts, and excises. Income taxes were infrequent and temporary measures, most often enacted to pay for wars, and legislated back out of existence when those wars were complete. It was only with a government lead by a progressive man with a progressive agenda, and a government that grew at the cost of freedom from intrusion, that we were given the gift of a permanent income tax, enacted to afflict “just the wealthy”, but somehow needing to grow beyond that restriction in a very short period of time.
Keef then guided Professor Amar into a discussion of the Necessary and Proper Clause as a rebuttal to those wacky Tea Party members who see the enumerated powers as being a strict concept. Keef’s derision focused on the lack of word “expressly” in the 10th Amendment and Madison’s fight to keep it out of the 10th Amendment. This is where the concept of nuance, which liberal democrats use to support facetious assertions, actually makes a difference. Because Keef referred to the enumerated powers being “both vague and specific”, rather than “general and specific”, he is more likely to interpret the Necessary and Proper clause as giving government the authority to do what ever it deems necessary to give effect to powers it divines from the general powers set forth in Article I, Section 8, because, as he states, they are “vague”. Professor Amar made specific reference to Hamilton’s exposition on the Necessary and Proper clause in the Federalist 33 and Madison’s explanation in the Federalist 44. But let’s look at all of what they said in these papers, because while certain members of Congress have subscribed to the view that government can do whatever it wants, as some of the Anti-Federalists feared, Hamilton and Madison didn’t see it that way, or at least presented a very different interpretation into their work. First, Hamilton and the Federalist 33:
What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culminated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
So far, so good. You’d have to be able to devise a tax and a means to levy it to establish post offices, to raise and support armies, to provide and maintain a navy…yes these are general powers, as they do not dictate the means by which the government is to do so. Hamilton went on to characterize the concern that raised the question over the clause in the first place, and to assert his belief that those wily states would somehow choke the life from the Federal Government, rather than the other way around:
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.
Hamilton then recognized the final authority in any matter undertaken by the government as the ultimate limitation on the exercise of this power:
But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.[Emphasis Added]
Which is a far cry from elected officials who go to town meetings and tell righteously pissed constituents that they do not know what they are talking about, that they don’t understand, that government can do almost anything in this county, or they don’t care about the Constitution.
So what did Madison have to say in the Federalist 44?
The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the “power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “EXPRESSLY” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.
So far, so good.
It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.
This is a weak argument to anyone who has ever seen a complete set of the United States Code in print, or the Code of Federal Regulations in print.
Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union.
So if they had left it out, that power would still be implied, or the general powers would mean nothing at all. Put another way, the ends expressed in the general powers make the means necessary anyway. Which leaves me to wonder aloud if those “means” and ends wouldn’t be subject to a greater scrutiny whenever employed if the Constitution had been silent on them. But more interestingly, Madison posits about what if Congress abuses this power:
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. [Emphasis Added.]
Now isn’t that an interesting concept? Voting out the usurpers and annulling their acts…like a record ouster in a midterm election and the nearly immediate introduction of a bill to repeal an act that was the product of chicanery, backroom deals, and forced into a vote without adequate time to review all 2000+ pages, in violation of promises of transparency and plenty of advanced time to read and study it? Naaaaaaaaaaa. That’s just “relitigating the past.”
And then there is this little tidbit from him regarding the other safeguard against such overreach:
The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.
Except that states can no longer recall their representatives in Congress, because they no longer represent the states. (Thanks Progressives and the 17th Amendment!) This argument is also more than a little bit facetious in that in representing much smaller constituencies, state governments are a heck of a lot more accountable to their citizens than a Congress where Representatives can position themselves for “safe seats”, thus insulating themselves from the consequences of certain votes, and Senators who represent so many people that they can afford to completely ignore close to half of them without any negative repercussions at election time. However, it does indicate that he, as one of the authors and architects of the text, fully contemplated state governments that had much more power than what they have today.
I would not be completely honest if I only examined the Federalist view of the subject, and for that reason, I will quote some of what our friend “Brutus” (thought to be New York Judge, and Constitutional Convention Delegate Robert Yates) had to say on the matter of the Necessary and Proper clause. From paper I :
This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared “that the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States; or in any department or office thereof.” And by the 6th article, it is declared “that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding.” It appears from these articles that there is no need of any intervention of the state governments, between the Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States. — The government then, so far as it extends, is a complete one, and not a confederation. It is as much one complete government as that of New-York or Massachusetts, has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences, and annex penalties, with respect to every object to which it extends, as any other in the world. So far therefore as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government.
How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law. A power to make all laws, which shall be necessary and proper, for carrying into execution, all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite [indefinite?], and may, for ought I know, be exercised in a such manner as entirely to abolish the state legislatures. Suppose the legislature of a state should pass a law to raise money to support their government and pay the state debt, may the Congress repeal this law, because it may prevent the collection of a tax which they may think proper and necessary to lay, to provide for the general welfare of the United States? For all laws made, in pursuance of this constitution, are the supreme lay of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of the different states to the contrary notwithstanding. — By such a law, the government of a particular state might be overturned at one stroke, and thereby be deprived of every means of its support.
And from XI:
Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any government, those of raising money, and of raising and keeping up troops, have already been considered, and shewn to be unlimited by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shewn, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it — though I believe this is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly, according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to, as well as the words in their common acceptation.
After reading the arguments of both sides, and spending much time pondering them against the backdrop of the history that has transpired since, I have a few closing thoughts.
1. I do find it ironic that Rutherford, who has always poo-pooed any arguments in the past regarding original intent that are rooted in the Federalist Papers, sees fit to line up behind the Professor’s reference to the Federalist Papers, and Keef’s invoking Madison’s reflection on not expressly defining the enumerated powers and preventing the implication of them by fighting to keep the word “expressly” out of the 10th Amendment. You’re either in or you’re out, and if you’re in, then you need to examine all of it.
2. I think that the Federalist Papers are an invaluable tool in determining “what the Framers really meant”, because you have the architects and authors telling you in their own words what they meant. Of course, this means that it is a lot harder to allege that the general enumeration of powers was “vague”, and therefore can mean what ever you want them to. Madison and Hamilton both clearly envisioned limitations on those powers, and the right of the people to check and remove politicians who disregard such notions.
3. Knowing what they intended doesn’t mean that there is no potential for usurpation and excess by the Federal Government. While Hamilton and Madison appeared to have difficulty countenancing such a state of affairs, they also had designed a system in which the states had their own representation in Congress, and could therefore respond to and block attempted encroachment on their power. The movement to ratify the 17th Amendment, relying on somewhat specious arguments and a population that did not adequately understand all the checks and balances built-in to the Republic, set forth a case for greater “democracy” and “accountability” as a means to fight corruption and removed this particular check without contemplating or proposing an adequate replacement. At the same time, Anti-Federalists, such as “Brutus” clearly foresaw the temptation that would inspire politicians to dissemble and read sufficient ambiguity into their powers that didn’t exist for those who conferred it, until, as predicted, nothing rests outside of their considerable power.
4. Yes, Virginia, the Constitution really did anticipate that the states, and not the federal government would have the bulk of the power over our daily lives. That was why they had all the emphasis on limited government, and only listed a certain number of enumerated powers…powers that ironically coincided with the perceived weaknesses in the previous Articles of Confederation. This is not an accident. Nor is it an accident that these powers very much embody what is necessary to take a collection of sovereign governments and allow for an effective defense and economy. If the states were meant to be merely subservient subdivisions of a central government, then there would have been no limits on the federal government’s power as drafted, and the principle architects would not have expressed the belief that the states could end the federal government.
5. The Anti-Federalist Papers give a good understanding of what the intent underlying the Bill of Rights was, because the various parties and delegations had the courtesy to pinpoint what they perceived as weaknesses in the Constitution with regard to the individual liberties that they had so jealously guarded from a king.
6. Rutherford’s remarks about Boehner “being his own man” sound very silly indeed, coming as they do from a Harvard Grad who refuses to do some of the hard work of citizenship for himself and READ these documents, so that he doesn’t have to rely on the interpretation of really really smart people like Keith “Spittle-Flecked” Olbermann.
7. Anyone who gets excited about such a shallow examination of such a deep topic, and gushes about a “living, breathing Constitution” needs to read this over and over and over again until they understand it.