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A False Claim for a “Living Constitution”

by Edward Posted: Friday, 6/3/2011

A_False_Claim_for_a_Living_Constitution <== PDF version

There are a significant number of people to buy into the argument that the U. S. Constitution should be a “living document”.  It is not just some crackpots who believe it; it is embraced by a fair number of educated people, some of them educated in constitutional law.  Before I examine a supposed justification for the “living constitution”, it is useful to spell out what is meant by that phrase.  The underlying philosophy of the “living constitution” sect (for it is a civil religion) is that the U. S. Constitution was a great advancement in the 18th century, but is now obsolete. With the advent of technology and industry that supplanted the agricultural economy of the colonial period, it is necessary, they claim, for the government to expand its powers as it sees fit in order to do good, help the people, to pick economic winners and losers, and to regulate the activities of business and the people for the common good. These expansions of power are justified, they claim, because it is all done for the benefit of the people.

It is pretty obvious that the intent of the founding fathers was to create a limited government with limited specified powers, as stated in Article 1, Section 8 of the Constitution.  The main idea was to protect individual liberty as much as possible, consistent with peace and stability.  But the advocates for the “living constitution” sometimes attempt to find a justification for the arbitrary-power model of government in the writings of the founding fathers themselves.  Mr. Garrett Epps does so in his essay of 1 Jun 2011 [1], titled “Constitutional Myth #2: The Purpose of the Constitution is to Limit Congress”.  It is true that the Constitution was intended to create a federal government that had viable powers, unlike the Congress under the Articles of Confederation.  Congress under the Articles was simply too weak to function as a viable government, and it was obvious that some new form of government was required.  That is quite different than saying the Constitution was designed to allow the federal government to anything it wanted.  Mr. Epps claims in his article that Alexander Hamilton viewed federal powers as unlimited. To do so, he quotes a sectio from Hamilton’s Federalist #34:

“There ought to be a capacity to provide for future contingencies as they may happen, and as these are illimitable, in their nature, it is impossible safely to limit that capacity.”

Mr. Epps uses this passage in isolation in an attempt to show that Hamilton regarded the federal government as having arbitrary powers, including one to create more powers, and the power to use them all as it saw fit in the future.  There are two fallacies here.  The first is that Mr. Epps fails to point out that the Federalist #34 is part of a long sequence on taxation (numbers 30 through 36) in which Hamilton expends great effort t show that federal and state taxation are compatible, can be efficiently collected, and are devoted to different expenses.  The federal expenses that Hamilton had in mind here are mentioned two paragraphs later in the same essay:

“What are the chief sources of expense in every government?  What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed?  The answer plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society.  The expenses arising from those institutions which are relative to the mere domestic police of a State, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.”

Secondly, Mr. Epps declines to point out that Hamilton had, a few days earlier in the Federalist #33, discussed the fact that only specific powers were conferred to the federal government.  In his discourse on taxation, Hamilton addresses objections to the “Supremacy Clause” (Article VI).  The critics had claimed that this and the power of taxation would be the “pernicious engines by which their local governments would be destroyed and their liberties extinguished”.  But Hamilton explains:

“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.  It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government which is only another word for political power and supremacy.  But it will not follo from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but are invasions of the residual authorities of the smaller societies, will become the supreme law of the land.  These will be merely acts of usurpation, and will deserve to be treated as such.”

It is clear that Hamilton regarded the powers of the federal government to be limited; otherwise, how could he claim that laws contrary to the constitution are acts of usurpation?  I is true that we the people have grown lazy and have failed to call acts of usurpation by their real name. The only fix for that is education.  I would urge everyone to read the Federalist Papers, so as not to be misled by those like Mr. Epp who wish to impose arbitrary government upon you.  It is clear that neither Hamilton nor the other founders implicitly advocated the notion of a “living constitution”.

[1]   https://www.theatlantic.com/national/archive/2011/06/constitutional-myth-2-the-purpose-of-the-constitution-is-to-limit-congress/239374/

Posted in Alexander Hamilton, Articles of Confederation, Early American history, federalism, Federalist Papers, government powers, living constitution, U. S. Constitution | No Comments »

On the General Welfare Clause

by Edward Posted: Wednesday, 5/18/2011

On the General Welfare Clause <== PDF version

Mr. Mike Wallace of Fox News interviewed Representative Ron Paul of Texas on 15 May 2011.  In the course of the interview, the topic of the meaning of the “general welfare” clause of the U. S. Constitution came up.  Mr. Paul’s view was that the Constitution did not grant the government to do anything it  wanted under a justification of “general welfare”.  Mr. Wallace cited the 1937 Supreme Court case “Helvering v. David”, which ruled that Social Security was permitted under the powers of Congress called out in Article 1 Section 8 of the U. S. Constitution.  By extension, therefore, in Mr. Wallace’s view, the Supreme Court has ruled that Congress may pass laws it claims to further the “general welfare”.  Mr. Wallace did not explain how payments to individuals, that is, laws that promote “individual welfare”, can actually be the same as “general welfare”.

What is the true meaning of the “general welfare” clause?  It appears in two places in the Constitution: a) the Preamble, and b) Article 1, Section 8.  The Preamble reads:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Article 1, Section 8 reads: “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”; whereupon follows 17 clauses calling out a list of specific enumerated powers granted to Congress.

To see the intent of the founding fathers, it is necessary only to review three passages of the Federalist Papers.  The first is Federalist #23, in which Hamilton refers back to the Articles of Confederation, where the phrase “general welfare” was first used.  He is discussing the principle that powers must be granted to governments commensurate with the ends desired, as follows:

Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it; though they have not made proper or adequate provision for its exercise.  Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations.  As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources were by them judged requisite to the “common defense and general welfare.”  It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head.

It is important to recall that the purpose of the Articles of Confederation was to manage the war effort against Great Britain.  Therefore, in the Federalist #23, Hamilton asserts that the general welfare consisted of maintaining that war effort.  His complaint here is that Congress under the Articles was too weak to force the states to uphold their end of the financial obligation.

The Constitution was formed as a union of the states into a system that is partly national and partly federal.  The powers granted to the government were greater than were granted by the Articles, in order to meet the needs of a compact union; i.e., to ensure that the union of the states functioned as a true nation, not as simply a federation.  In other words, the government under Constitution would have greater powers to promote the general welfare than the Articles which it replaced.  James Madison explained what these powers of “general welfare” are in the Federalist #41, as follows:

“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined.  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 defense 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 defense 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 any 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.”

It is obvious therefore, that the powers conveyed to Congress for the purposes of common defense and general welfare are the enumerated powers listed in the 17 clauses immediately following the main heading of Article 1, Section 8.  If you look them up, no where will you find anything resembling the “social programs” currently in force at the federal level.

Last, Hamilton alludes to this principle briefly in the Federalist #62, as follows:

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.  Some governments are deficient in both these qualities; most governments are deficient in the first.  I scruple not to assert, that in American governments too little attention has been paid to the last.  The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.

Here we see from his last sentence that the U. S. Constitution provides the means, that is, the legitimate powers, by which the happiness of the people is to be secured, which is the object of government.  Since all legislative power is vested in the Congress per Article 1, Section 1, it seems that Hamilton is referring to the same list of powers as contained in Article 1, Section 8.  He also mentions “knowledge of the means by which that object can be best obtained”.   He was discussing the Senate in the Federalist #62; but here is a case where all of us would do well to examine the powers granted in Article 1, Section 8 so we can see for ourselves the legitimate powers of government conducive to liberty, security, and the general welfare.

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Posted in Alexander Hamilton, Early American history, Federalist Papers, James Madison, U. S. Constitution | No Comments »

On Unprivileged Enemy Belligerents

by Edward Posted: Monday, 5/16/2011

On Unprivileged Enemy Belligerents <== PDF version

The U. S. Senate has now before it S. 3081, “The Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010”, which would allow the President to assign a certain designation to persons, and thereby authorize they be detained indefinitely without trial.  The provision reads, in part:

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of war may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

The aforementioned section 3(c)(2) reads:

FINAL DETERMINATION- As soon as possible after receipt of a preliminary determination of status with respect to a high-value detainee under paragraph (1), the Secretary of Defense and the Attorney General shall jointly submit to the President and to the appropriate committees of Congress a final determination whether or not the detainee is an unprivileged enemy belligerent for purposes of this Act. In the event of a disagreement between the Secretary of Defense and the Attorney General, the President shall make the final determination.

It was sponsored by Senators McCain, Lieberman, Inhofe, Brown, Wicker, Chambliss, LeMieux, Sessions, and Vitter.

Some critics of the provision have opposed it on the grounds that it violates the fifth and sixth Amendments to the U. S. Constitution.  Actually, it is worse than that: it violates the entire spirit of the Constitution; it violates the Constitution even if the fifth and sixth Amendments had never been passed.

Article 1, Section 9 of the U. S. Constitution, which defines the general powers of the Congress (which possess all legislative powers under the Constitution), reads: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of actual rebellion or invasion the public safety may require it.”

Alexander Hamilton, defending the proposed Constitution in The Federalist # 84, which as proposed, did not contain a bill of rights, addressed the importance of the habeas corpus provision.  He notes the provision of habeas corpus, the prohibition on ex post facto laws, and the prohibitions upon conveying titles of nobility in the proposed federal Constitution and points out the lack thereof in the constitution of the state of New York.  He then proceeds to quote from the famous English jurist William Blackstone the underlying importance of the habeas corpus provision.  Hamilton wrote:

“It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains.  The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [says he,] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”  And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls “the BULWARK of the British Constitution.”

If this proposal becomes law, we will have two classes of citizens: the privileged, for whom the writ of habeas corpus still prevails, and the rest of the people, who may be spirited off to jail for the duration of hostilities because some bureaucrat somewhere has convinced the President that doing so aids in the prosecution of hostilities.

It used to be that even traitorous lowlifes got their day in court.  They were vigorously tried based on evidence; a jury decided their guilt or innocence in a fair trial; and they were honorably shot or hanged if convicted. But that process appears to be too much of an inconvenience to the government in these modern times.  So, we see the continual attempts to encroach upon not just the liberty of individuals, but to encroach upon the basic tenets of limited government — that is, a free society.

A supporter of S. 3081 may claim that the cases are different; that the designation of enemy belligerents does not fall under the “arbitrary imprisonments” that Blackstone rightfully complains of, since S. 3081 requires a formal designation by the President. But I say they are exactly the type discussed by Blackstone.  If a medieval English king ordered someone to
be sent to the Tower, did he not first designate that victim by name under some rationale?  Of course – how else would the police know who to arrest, and thus satisfy the tyrant?  The process here is exactly the same, and should be rejected for the same reasons.

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Posted in Alexander Hamilton, Bill of Rights, Federalist Papers, fifth amendment, habeas corpus, sixth amendment, U. S. Constitution | No Comments »
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