The Real Meaning of the Constitution
By JOHN SEILER
Writing recently in the Sacramento Bee, two professors mangled the actual meaning of the U.S. Constitution. Alan Gibson of Cal State Chico and James Read of the College of St. Benedict and St. John’s University in Minnesota charged that while the newly elected Republicans in Congress have initiated new rounds of constitutional contests, “most Americans know very little about the constitution or its history.”
The matter is crucial, especially to California and other “free and independent states,” as the Declaration of Independence called them. Just to cite our ongoing state budget deficit problem of $25 billion, federal mandates control, among other things, spending on health, education and welfare. The mix of federal funding and controls and state and local spending also increases the size and cost of the state and local bureaucracies that manage the tax monies.
The professors write of four “myths” surrounding the Constitution. But before we get into those, it’s worth discussing just what a written constitution — whether for the United States, one of the 50 U.S. states, or foreign countries — is about. The reason a constitution is put in writing is that it’s supposed to be followed to the letter.
This is crucial, because otherwise a constitution might as well just say, “The government can do whatever it wants.”
It’s true that the future brings unexpected events that mandate changing the Constitution. The Constitution itself provides a means of modification, the amendment process detailed in Article 5. Since the Constitution was ratified, there have been 27 amendments, including the first 10, the Bill of Rights. There also have been dozens of unsuccessful attempts to amend the Constitution.
The amendment process is not too cumbersome for any real need to change.
Supposed Myth One
The professors’ Myth One:
The Constitution was created to rein in an out-of-control federal government that was taxing people too much.
They don’t provide a citation for this supposed myth. The common explanation for the Constitution’s creation is provide by them:
Reality: Under the Articles of Confederation, which the Constitution replaced, the federal government was too weak and lacked the power to compel the payment of taxes. The Constitution created a stronger federal government able to “lay and collect Taxes,” defend the country, pay its debts, regulate interstate and international commerce, and in general “secure the blessings of liberty” in ways the states acting individually could not.
They don’t mention the theories of others, such as historian Charles Beard, that some of the wealthy Founders wanted to consolidate their own power, and so created a stronger central government, which they controlled. The so-called Anti-Federalist Papers warned that the government being set up under the Constitution eventually would burst the limits of the Constitution itself and grow to size of the governments of the despotisms of Europe, something Americans of those revolutionary times wanted to avoid.
The Federalists, supporters of the Constitution, replied in their better-known Federalist Papers. Federalist No. 45, written by James Madison, was a key. He wrote:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The essential phrase: “few and defined.” That’s the premise on which the federal government was sold to the states that ratified the Constitution. No amendment since has changed those words.
In Article I, Section 2 of the Constitution, indeed, we see that there are only 18 “few and defined” powers.
So, who was right, Federalists or Anti-Federalists? The Federalists were at the beginning, as the federal government remained fairly small for decades. What changed was the growth in government during the Civil War, and the vast new powers it brought the central government at the expense of the state governments. The Southern states even were defeated in battle and forcibly taken over during Reconstruction.
But even after the Civil War and Reconstruction, the federal government, although larger than before, still was relatively small, comprising only about 2 percent of the economy until after 1900.
After the Civil War, the presidents of that day promised that they would maintain the old compact, with the federal government being limited. For example, President Grover Cleveland solemnly promised in his First Inaugural Address in 1885 (worth reading in full):
In the discharge of my official duty I shall endeavor to be guided by a just and unstrained construction of the Constitution, a careful observance of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people, and by a cautious appreciation of those functions which by the Constitution and laws have been especially assigned to the executive branch of the Government.
And it wasn’t just a campaign promise. Cleveland was famous for vetoing hundreds of bills. Here was his veto message to the Texas Seed Bill, a form of welfare in his day being promoted by the Republican Congress:
I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.
Can one imagine a president, Democratic or Republican, doing such a thing to day?
The two professors continue:
But at the same time the Constitution sought to define and limit this increased federal power and make it accountable to the people of the United States – above all through regularly scheduled elections. In the framers’ view, government could be energetic and limited at the same time.
Actually, as Grover the Good noted, it’s the Constitution itself that limits the government, or at least is supposed to.
So far, no amendments have been adopted to allow such things as welfare, Social Security, federal aid to local education, etc., not to mention Obamacare.
But the Anti-Federalists also turned out to be right, as can be seen by the gargantuan size of the U.S. government today. With Cleveland gone, the Democrats discarded their Jefferson-Cleveland heritage of small government and joined Republicans as advocates of incrementally increasing the power of the federal government. Yet things still didn’t get out of hand completely until the 1930s.
Supposed Myth Two
The professors write:
Myth Two: Strict adherence to the Constitution requires desiccated interpretations of congressional power.
Reality: The framers intended the powers of Congress to be fully adequate to the real challenges the country would face. Article 1, Section 8 entrusts Congress with a pretty generous list of enumerated powers, including “to regulate commerce with foreign nations, and among the several states.” Section 8 concludes by giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” This clause, which is the source of the Constitution’s “implied powers,” signals that Congress can pass laws on matters not directly named, as long as those laws have a “necessary and proper” relation to the specified purposes.
As we have seen, Article I, Section 2 actually sharply limits congressional powers. I guess, as ex-President Bill Clinton once put it in another legal context, “It depends on what the meaning of the words ‘is’ is.”
The Constitution rapidly started breaking down during President Franklin Roosevelt’s New Deal of the 1930s, which was influenced by the fascist regimes then being imposed in Europe. FDR said in 1933, as the New Deal was being imposed:
There seems to be no question that [Mussolini] is really interested in what we are doing and I am much interested and deeply impressed by what he has accomplished and by his evidenced honest purpose of restoring Italy.
FDR also said that year:
I don’t mind telling you in confidence that I am keeping in fairly close touch with that admirable Italian gentleman.
So the model for cracking the strictures of the decentralized Constitution was not Washington, Jefferson, Adams and Madision, but Il Duce and his centralized regime.
The two professors write:
Together the “commerce clause” and the doctrine of implied powers have been the constitutional source of many programs – accepted by Democrats and Republicans alike – that the federal government uses to regulate trade and the economy and enhance the welfare of all Americans. They are also the constitutional source of recent Democratic programs in health care, cap and trade, and economic regulation.
Note that they did not refer to the powers enumerated in Article I, Section 2 of the Constitution to justify such increases in the power of the federal government, but the “commerce clause” and the “doctrine of implied powers.” The “doctrine” isn’t in the Constitution, but was made up by Alexander Hamilton to justify the First Bank of the United States — as was pointed out at the time by Thomas Jefferson, James Madison and Attorney General Edmund Randolph.
This “doctrine” has caused immense mischief, especially since FDR’s day. Any expedient can be found to justify a an “implied powers” expansion of the federal government. It essentially overrides every limit in the Constitution. This is how we ended up with a U.S. government with an incredible $4 trillion budget, $1.5 trillion federal deficit and $15 trillion debt.
As to the “commerce clause,” it originally meant — obviously — only the regulation of commerce between states. This made the whole of the United States a gigantic free-trade zone, a major reason for the country’s prosperity. An avocado grower in California can chip his food to the other 49 states without worrying about which tariff must be paid in which state, because there are no internal tariffs.
Unfortunately, FDR didn’t like the Constitution’s limitation on his interference with economic production (which, by the way, only prolonged the Great Depression). In 1935, the Supreme Court, correctly interpreting the U.S. Constitution, overturned the National Industrial Recovery Act and the Federal Farm Bankruptcy Act, two Mussolini-inspired centralizations.
Enraged, FDR branded the upholding of the Constitution a “horse and buggy definition of interstate commerce.” In 1937, FDR tried to pack the Supreme Court with pliable justices. He failed, but after he was elected to an unprecedented third term in 1940, new justices he appointed — and the immense powers he assumed in World War II — made the Court see matters his way.
This was a time, after all, then FDR (and California Attorney General, later Governor, Earl Warren) were putting loyal Japanese-Americans in concentration camps, an act upheld by the U.S. Supreme Courtin the 1944 decision, Korematsu vs. United States. And FDR launched the Great Sedition Trial against his critics. (Fortunately, in that case, lower-level courts protected the critics’ right to free speech.)
Unfortunately, in the 1942 case, Wickard vs. Filburn, the U.S. Supreme Court absurdly ruled that the “commerce clause” extended to absolutely any economic activity in the country, not just to commerce between states. As Wikipedia summarized it:
A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
The Wickard ruling was an unprecedented and unconstitutional expansion of federal power worthy of FDR’s model, Mussolini. (By 1942, FDR was at war with Musso, as he was called, but didn’t abjure Musso-style centralization.)
It’s also absurd, of course, to burn perfectly good crops. But the main thing is that the commerce clause since then has been used to excuse almost any federal expansion.
It’s now almost 70 years since the Wickard case, and now the Feds minutely control every aspect of our lives: from the size of our toilets and shower heads, to the content of our children’s public-school books. Before FDR and Wickard, people would go through their whole lives seeing no federal officials except the local postal clerk. Today, the Feds are as pervasive as the old Soviet bureaucracy was in Russia.
Supposed Myth Three
The professors write: “Myth Three: The Constitution used to be followed strictly, but recently has been interpreted broadly.
Reality: Debates about how broadly or narrowly to read the Constitution in general and the “necessary and proper” clause in particular date to the earliest years of the republic.
They bring up the 1791 chartering of the First Bank of the United States, which I discussed above. They note that Hamilton and Jefferson debated the matter, with President Washington siding with Hamilton.
It’s an old debate. When I visited Monticello in 1983, the tour guide noted that Jefferson had placed busts of himself and Hamilton on opposites sides of the entrance on the first floor “so they would be eternally opposed.”
But the debate doesn’t end there. As historian Thomas DiLorenzo describes in his recent book, “Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution–and What It Means for Americans Today,” Hamilton’s obsession with centralism, especially a central bank, has plagued the country ever since.
Click this link for a Google search listing DiLorenzo’s articles and YouTubes on Hamilton. And this article by DiLorenzo is a good summary of his book; in the article, he writes:
The current economic crisis is the inevitable consequence of what I call Hamilton’s Curse in my new book of that name. It is the legacy of Alexander Hamilton and his political, economic, and constitutional philosophy. As George Will once wrote, Americans are fond of quoting Jefferson, but we live in Hamilton’s country.
The great debate between Hamilton and Jefferson over the purpose of government, which animates American politics to this day, was very much about economic policy. Hamilton was a compulsive statist who wanted to bring the corrupt British mercantilist system — the very system the American Revolution was fought to escape from — to America. He fought fiercely for his program of corporate welfare, protectionist tariffs, public debt, pervasive taxation, and a central bank run by politicians and their appointees out of the nation’s capital.
Jefferson and his followers opposed him every step of the way because they understood that Hamilton’s agenda was totally destructive of liberty. And unlike Hamilton, they took Adam Smith’s warnings against economic interventionism seriously.
Moreover, since the über-central bank, the Federal Reserve, was created in 1913, the country’s currency has run through several inflation periods, including the current one, that has eroded the value of the dollar from $22 in 1913 to about $1,355 today. A Hamiltonian central bank is at the center of our economic malaise. For proof, see Ron Paul’s book, “End the Fed.”
How much better off we all would have been to simply follow the Constitution’s stipulation that Congress has the power only to “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures” — meaning, establish that a certain weight of gold is equal to a certain amount of dollars. It’s significant that the “Coin Clause,” as I call it, is next to the Standard of Weights and Measures Clause. The Coin Clause meant the currency — the dollar — was meant to be a yardstick of a certain measure of gold (or silver) everywhere in the country, much as a yard or mile everywhere were given the same length. Thus, uniform measures of dollars, yards and miles would facilitate commerce throughout the land.
The professors note, for the 1791 banking controversy, “Later, as president, Jefferson took actions that contradicted his narrow view of constitutional power.” That seems to mean that Jefferson changed his mind on the national bank. He didn’t. True, he did violate the Constitution with the way he went about the Louisiana Purchase. But all that means is that he violated his own principles — something not unknown in the annals of history even among great men.
However, by and large Jefferson downsized government, as we would say, from the expansion of the federalist years under Washington, Adams and Hamilton.
Supposed Myth Four
The professors write:
Myth Four: Only one party supports programs readily tied to the Constitution.
Reality: A commitment to consistent constitutional principles is shaky on all sides of the political spectrum – including those most aggressive in their claims to own the document.
Well, they’re certainly right about that one. Republicans, despite their supposed reverence for the Constitution, and reading it at the start of business in the House of Representatives this year, compete with Democrats in seeing which party can most violate the old document.
To cite just one example, the so-called USA “PATRIOT” Act of 2001, enacted in the panic after 9/11, was proposed by the Republican Bush Administration. But it was made up of dusted-off proposals from the Democratic Clinton Administration that had been rejected by the Republican-controlled Congress in the 1990s. However, in 2001 the Republican-controlled House and the Democratic-controlled Senate both eagerly approved this severe violation of American liberties as guaranteed by the Bill of Rights.
The “PATRIOT” Act (more the enactment of traitors) has been continued by the Democratic-run Congress of the past four years and Democratic President Obama.
And both parties have given us the Transportation Security Administration’s perverted groping and molestation of innocent airline passengers, even children and grandmothers.
American Revolution 2.0?
It’s obvious that the original Constitution, as written and established by the Framers and Founders, hardly exists any more. The reason is provided by the two professors: the ease with which they excuse almost any increase in government power these past 222 years since the Constitution became operative. Generations of historians, Supreme Court justices, lawyers, editorial writers and others time after time, have excused massive violations of the Constitution, and increases in government power, to promote the expediency of the day.
This is easy to see by considering the following: What would Washington, Jefferson, Madison, Adams and even Hamilton say about the following:
* The TSA molestation of airline passengers.
* The federal government’s regulation of toilets and shower heads.
* President Clinton’s incineration of 70 Americans, including 20 children, at Waco in 1993. The excuse given by Janet Reno, the attorney general, was that she suspected “child abuse.”
* A federal debt of $15 trillion. As Jefferson said, “We must not let our rulers load us with perpetual debt. We must make our election between economy and liberty or profusion and servitude.”
* The U.S. military engaged in two unending wars, with troops stationed in more than 130 countries around the world. The Constitution clearly stipulates that war cannot be started by the president, but only by a “declaration of war” by the Congress. The last such declaration was World War II, which ended 65 years ago. Now the wars and the empire are bankrupting us.
Washington warned in his Farewell Address: “The great rule of conduct for us, in regard to foreign nations, is, in extending our commercial relations, to have with them as little political connexion as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop….It is our true policy to steer clear of permanent alliances with any portion of the foreign world.”
The problem now is that, if we actually followed the Constitution, we would have to eliminate about 95 percent of what the federal government currently does, including ending the wars and empire, repealing Social Security (now bankrupt, too), Medicare, Medicaid, the Department of Human Services, the Heimat (excuse me, Homeland) Security Department, the Department of Education, and so on down the line.
As mentioned, in 1935 President Roosevelt branded the Constitution’s constrictions on his expansion of federal powers a “horse and buggy definition of interstate commerce.” But that was 76 years ago. We no longer live in the industrial age, of large, labor-intensive industries that could be harnessed by large governments for machine-drive wars.
Instead, we live in the Internet Age, in which the economy and control are widely distributed and dispersed. This has been seen dramatically in the Facebook-driven revolutions in Tunisia and Egypt.
Ironically, it is the decentralized U.S. Constitution that is appropriate for the Internet Age, not the centralized interpretation of the Constitution imposed especially harshly since FDR’s long-past Mechanical Age. The days of FDR and Mussolini are as remote to us as the “horse and buggy” days were to him.
Because America is essentially bankrupt, government is going to have to be down-sized no matter what.
What’s needed is a new revolution — a peaceful one this time, because the Feds have The Bomb. We need American Revolution 2.0. The Tea Parties, although tepid, are a beginning.
Let’s get started chopping government back down to size, decentralizing everything along the federal model of the actual words of the Constitution. And if we need to cut the size of government down yet further, if government remains too big for the Internet Age, there’s always the Articles of Confederation.
FEB. 7, 2011
John Seiler is a reporter and analyst for CalWatchDog.com. His email: [email protected].
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