…but what if it is all unconstitutional?
By Shaun Kenney | Saturday, November 27th, 2010 | PolicyBetter to be insane with the crowd than sane alone? So goes the length of this analysis by Brian Schoeneman below about reflecting on such items as Medicare, the Department of Education, and No Child Left Behind as “unconstitutional” acts.
The problem with all of this is that there has been a steady voice from many Americans well before this reign of supra-constitutional acts came down from Washington. When the average American looks to the Constitution, then looks at how the nation is being run and cannot equate the two, it is not reassuring to those very same Americans to hear from the high priests of the new order that everything is OK.
In fact, that only makes matters more maddening.
Here’s the catch: America is built on two understandings: (1) that there is a natural law that governs all men and from this issue inalienable rights, and that (2) under that law Americans have formed a social contract.
When the laws of any nation become muddied beyond the ability of the average person to understand such laws, it does absolutely no good to hear from politicians and judges and lawyers about how everything makes sense, that an archaic set of laws have sprung into motion, and what you read in the U.S. Constitution does not have to make sense. Rather, our Constitution must conform to our laws, rather than our laws conforming to our Constitution.
This is no mere partisan wave. Independents have been swinging the gate between Democrats and Republicans since 2006. Anger at government knows no political party. First the Congress, then the White House, now the U.S. House swings back.
It’s not just the Tea Party. Nor is it only “hope and change” — Americans are pissed off at the clique of elites who tells them how tall their grass must be, what they can and cannot build on their property, how their taxes are collected, what those taxes are spent upon, and whether or not they can be arrested or charged on any number of items in the name of safe streets or counter-terrorism (or illegal immigration enforcement — pick your poison).
What ever happened to the land of the free and the home of the brave? Look at a TSA counter and find out.
I would take the opposite argument. Yes, there are many things that are wholly wrong with the way America is governed. And yes, it is the sign of a healthy, vibrant American republic that every law is challenged based on its constitutional merits. More directly to the point, the American people should not require the imprimatur of a constitutional lawyer or politician to be able to raise the question.
The more government does for us, the less we require of ourselves. Show me the constitutional authority for the TSA? The massive entitlement system? Government mandating that I buy health care? Show me where Americans must provide at the federal level for a public education system held hostage by the teacher’s union, and is one of the worst performing in the G-20? Where is the constitutional authority for the Commerce Department? No Child Left Behind? The EPA? Social Security?
Flip the coin to its the other side: Show me the constitutional authority for torture? Indefinite internment without charges? The invasion and permanent occupation of Iraq and Afghanistan? The need for troop deployments in Germany and South Korea? What about a $700 billion defense budget?
Never waste a crisis — remember that line? Because in times of crisis, men do what men have always done — they expand their control. This is the “fatal conceit” that Hayek warned against, and those who enjoy the power and philanthropy of the state see opportunity in your crisis.
These are the questions being asked. Citing the Code of Federal Regulations or a bevy of court opinions doesn’t wash.
We The People — not we the high priests of courts and government — forged the Constitution so that we may be governed by law, not by men.
You know what I think bothers folks? That it really might all be unconstitutional.
That scares the hell out of a bureaucratic engine of millions of employees and families. But the secret to American greatness lies in our ability to govern less, not more.
Think about that for awhile, and see whether or not those who preach the light hand of government really aren’t really just putting the heavy hand of big government in a velvet glove — and whether you, your forefathers, or your children would ever consent to such an arrangement.
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Shaun Kenney is the Chairman of the Fluvanna County Board of Supervisors, former Communications Director for the Republican Party of Virginia, and an active blogger since 2002. Shaun lives in Thomas Jefferson's backyard with his wife, six children, and a modest attempt at a farm in Kents Store, Virginia.
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52 Responses to "…but what if it is all unconstitutional?"
George Washington’s whiskey tax looked curiously like England’s tea tax that led to the first Tea Party.
John Adams’ Sedition Acts forbade criticism of the government.
Seems that those around when the Constitution was written had a pretty good way of changing their views about it once they were in power.
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Right on, Shaun. I think you are right that there is a tacit conspiracy of silence from the elites on the nominal right and the nominal left based on the fear that it just might ALL be unconstitutional… and then where will their power be.
@Shaun, thank you!
@Kirwin, giving GW credit for the whiskey tax is somewhat unfair since it was mostly driven by Alexander Hamilton, a well-known proponent of federal power. Luckily we had Thomas Jefferson who fought the whiskey tax and was elected to President because of backlash against Sedition Acts which he overturned and pardoned those punished.
At a time of unprecedented deficit and debt, it is even more important to scrutinize whether things are constitutional. If it leads to a loss of government jobs in D.C., so be it. We’ve created too many new ones in the last 10 years.
Amit, he was President, wasn’t he?
“What if it’s all unconstitutional?”
Funny you should mention that.
http://www.rasmussenreports.com/public_content/politics/general_politics/november_2010/many_say_government_now_operating_outside_the_constitution
Shaun, this isn’t a question of some kind of wisdom brought down off the mountain that only Moses can see. This stuff is all out there in the public domain. All you need is a library card and a willingness to be bored to tears and it’s all available. It’s also on the internet, on THOMAS, and many, many other places.
You want a quick crib sheet for those programs you cited? No problem – I’ve got some free time.
TSA – Commerce clause. Commerce in the constitutional sense doesn’t mean business. It means the delivery of goods and people between areas. It’s long been held that Congress has the authority to regulate the means of interstate commerce. Airlines are a means of interstate commerce. This is one area where the commerce clause hasn’t been stretched to the breaking point. Congress can regulate who boards an airplane. That’s TSA.
Entitlements/Social Security – Tax and spend clause. Read the Helvering case I cited in my article.
Government mandating that I buy health care – That’s legitimately unconstitutional and I’ve argued quite thoroughly that it is in a two part series over at Too Conservative, which I reposted at Common Sense http://www.novacommonsense.com/category/lawpolitics/
Federal level public education system – Tax and spend clause. But this isn’t something that MUST be funded. Education isn’t a federal right (it is commonly a state right) and we don’t have to fund it if we choose not to. But our representatives have, time and time again, chosen to do so.
Commerce Department – Article I Section 8, and the variety of different grants of power that are overseen by the Commerce Department, including the census, regulating commerce, and lots of others.
No Child Left Behind – The tax and spend power, as I noted in the article. States don’t need to comply with NCLB if they choose not to, but they forgo federal grant money.
The EPA – Another commerce clause expansion. Since 1899, when the Refuse Act was passed, Congress has been regulating environmental issues.
Torture – There is none.
Indefinite internment without charges – The Constitution doesn’t apply to non-Americans being held outside U.S. territory. Article I Section 9 allows for the writ of habeus corpus to be suspended during rebellion or invasion, which is what Lincoln did during the Civil War.
The invasion and permanent occupation of Iraq and Afghanistan – Article I Section 8 grants Congress the authority to declare war, and regulate the army and the navy. Article II Section 2 names the President Commander in Chief and grants him that authority over the military.
Troop deployments in Germany and South Korea – Same as above.
$700 billion defense budget – Same as above.
Don’t get me wrong – I am as upset about government overreach as the next guy. My issue is with how we confront it. We can stand around and stamp our feet and scream “you can’t do that!” when it’s already been done, or we can work together to ensure that we elect people who are willing to roll back and repeal what has been done that we don’t like.
Things don’t have to be unconstitutional for them to be bad ideas or the wrong things to do. It would be perfectly constitutional for Barack Obama to ask Congress for a declaration of war against Canada and then attack for no good reason. It would be perfectly constitutional for him to ask that Congress throw out the dollar and make bottle-caps the national currency. It would be perfectly constitutional for him to pardon every criminal in every jail in the country. That doesn’t mean those are good ideas. They aren’t.
When we sit around and call everything that the government does unconstitutional, we are destroying people’s faith in our system of democracy – not the government, the republican underpinnings that make the government possible. When people sit around thinking the Congress is illegitimate, or these regulations are illegitimate or the President is illegitimate, it destroys the fabric that holds the country together. You get an electorate who doesn’t care anymore – who don’t bother voting, who could care less about participating, and sit back and complain but don’t do anything to fix the problems they see, because they don’t think it’s possible.
It’s time to shift the debate. It’s not about whether we can or cannot do something – it needs to be about whether we should or should not do something.
Yes, people are angry, but if that anger is going to solve problems, it needs to be harnessed and channeled in the right direction. Railing against the law is not the right direction. Working together to reduce the size of government, it’s scope and impact is the right answer. And that will be done in Congress and the executive branch, not in the courts.
Yeah well, keep treating people like cattle in a stockyard and you will soon see limited government all right.
Strip searches, whether performed electronically or physically, and groping of sexual organs are still non-routine searches prohibited by the Fourth Amendment without probable cause. In addition those so called naked images that are created have the ability to be technologically manipulated into personally identifiable information should the government so dictate in the future.
So go ahead, protect your SSN while the government collects your blood vessel patterns the next time you want to visit grandma for Thanksgiving. All in the interest of your safety and commerce of course.
Yes, there are legitimate authorizations in the Constitution and in the powers it grants to the Congress and the President for most if not all of the enumerated “abuses” that the Tea Party and their fellow philosophical travelers object to, as Brian catalogs.
One of the aspects of the Tea Party that most disturbs me is its anti-intellectualism. The dumbing down of America has brought to the mainstream and validated this absurd attitude that “if I don’t understand it, it must be wrong.” I grew up in a rural area where it was an article of faith among many people that somehow common sense was separate from more valuable than formal education and, therefore, you could be uneducated but wiser than those who were not. How convenient.
This baroque line of reasoning reaches its apogee of ridiculousness in the birther conspiracies, with are blithely unencumbered by knowledge of US law or the concept of jus sanguinis citizenship.
Yes, people are angry at the professional political class and rightfully so. There are too many instances of misconduct in office, ranging from simple arrogance that allows ignoring the popular will of the people to outright corruption and abuse of public office for personal gain. It is long since time to drain the swamp. But the solution is not to revel in uninformed ignorance.
@Brian S –
I would only argue in response that those definitions are the very point the Anti-Federalists were making against the U.S. Constitution — that such a document would only be twisted to benefit those in power.
…and I would further counter that each of those instances could be countered by an amendment in the Bill of Rights.
Still, the fact that the best response is to get a library card and look up case law just doesn’t wash for the vast majority of Americans.
For instance, one should be able to see the “commerce clause” of the Constitution, align it with the 4th Amendment, and argue whether there is constitutional authority for the TSA. You have to admit, that’s a pretty broad interpretation of the Constitution to invalidate the 4th (and no, I don’t particularly care to get into the details — but you get the general point I’m making).
Now I’m not a lawyer — I’m a philosopher by background (which might be worse). So I imagine that anyone could make a forceful argument pro or con for this.
Still, unless one grasps the fundamental argument that the vast majority of dissenting Americans cannot equate their social contract with the brambles of state and federal laws surrounding it, you’ll never understand the waves that swept Obama into the White House, or the Tea Party that swept out the same crowd in 2010.
@HisRoc —
The charge “if I don’t understand it, it must be wrong” flung at the Tea Party is (a) the same charge thrown at anti-war liberals when it comes to terrorism and Iraq War intelligence, and (b) an uneducated dodge.
First, it is not unreasonable to ask to be able to understand the laws by which you are governed, and the further reasoning behind it.
Second, the faux intellectual attack on those who do not understand the laws is little more than attacking the child who says the emperor has no clothes. Go back to the title of this post — what if, indeed, the emperor is naked? That’s what’s gnawing at the minds of those who make a living off of the bureaucracy…
Last, the intellectual conceit that follows just fans the flames. Those college grads who are coming out $120K in debt are certainly worse off than the tradesman making $80K a year and banking for a small business. Guess which one is the Tea Partier, and which one is the leftist agitating for a school debt bailout? Common sense, in this instance, certainly prevailed over what passes for an education these days.
All this having been said, I completely agree that the answers are not to be found in burning Rome, or settling for a new populist form of ignorance. At the same token, sticking to the current lazy intellectualism with the hopes that gov’t will do what people will not do for themselves is creating the very brambles many Americans want to avoid.
People desperately want to understand their government. That these “intellectuals” create the system that is not understandable is only a reflection of their lack of insight and intellect — and not a condemnation of the former.
Shaun,
You don’t need to be a lawyer to understand the Constitution. We used to teach it in high school civics classes.
None of the Bill of Rights amendments are absolute. The First Amendment does not protect me from slander or libel. The Second Amendment does not allow me to carry concealed in an elementary school. The Fifth Amendment does not prevent public condemnation and taking of private property. The Eight Amendment does not proscribe capital punishment.
Similarly, the Fourth Amendment does not make security screenings unconstitutional. The operative word is “unreasonable.” I haven’t been through the new screening procedures yet, but the people I have spoken to who have maintain that it is no big deal. The “don’t touch my junk” stuff is simply a lot of hyperbole.
@Kirwin –
Totally agree. But at least George Washington didn’t set up a TSA and ask for nekkid pictures just to make sure you’re not smuggling whiskey.
@HisRoc –
Completely agree that you don’t need to be a lawyer to understand the Constitution (that’s the point of this post).
However, when the average American cannot sift through case law, legislation, and the CFR and size it up with constitutional authority… well, you get rulings like “torture is OK” and “TSA is OK” — and it’s no small wonder why people are exasperated with their government, on both the left and the right.
Shaun,
I think that we are in agreement if we are both unwilling to have the people “settling for a new populist form of ignorance.”
That was my point.
@HisRoc –
Where we may disagree is that I, for one, am not willing to leave it there. Nor will the Tea Party or other populist movements leave it there so long as they cannot size up their Constitution with their laws, etc.
Shaun,
Yes, we do disagree. My problem with the Tea Party, the Birthers, the Anti-Tax movement, and other populist groups is that their positions are largely postulated on a willing and persistent ignorance that is possible only with a suspension of simple facts. I don’t believe that people are frustrated so much by their inability to reconcile their laws with the Constitution but by a politically immature dislike for the laws themselves. It is a mentality that says, “if I don’t like it, it must be unconstitutional.” Life is hardly that simple and convenient.
HisRoc, I am puzzled by your comment about “Tea Party anti intellectualism”. I have taken time to get to know several Tea Party leaders. One common trait I find is that they passionately love this country and admire the founders principles that made the American dream a reality generations later. They also do not trust the present leadership as a whole to do the right thing. Tes leaders are working people, not magnu cum laude harvard or some other ivy league stereotype. Some of them are a bit flamboyant, not always pragmatic in their strategy and boisterous because they like to get their grassroots ideas out in a (dem/gop)opoly media sphere of influence, and this works for some of them. They know full well they are amatuers and need better “educated” leadership. Also, unlike blinded gop or dem party members, they have less faith in their elected representatives than ever before which is one big reason the gop and dems have lost their popular majorities and now have to contend with an expanding body of independents.. What I think your comment misses is that the movement is flush with the common man and woman who realize the decline in our country rests in the hands of supposedly principled and highly educated elected leaders that failed to follow the constitution and instead supported their moneymakers demand for globalization in lieu of made in USA. Highly educated er, overeducated shitheads have been elected for decades that once elected turned their back on the constitution for personal gain.
Tea Party commoners if you want to call them that know they have been punked by highly educated elites from both parties, moreso from the barbarian right than the kleptocratic left.
@HisRoc –
The failure you’re identifying is one of education, not of reasoning. For instance, the Bush Administration’s justification of torture was met with the same cries the Obama Administration now faces regarding health care and economic policy. It’s endemic, on both sides.
The solution? Well, this highly intellectual elite can either condescend to explain it in the terms our high school class taught the Constitution can understand… or, perhaps — just perhaps — these people with a high school education (the very same one the “intellectuals” shackled them with in the first place) have a point after all.
Perhaps the answer is both? I don’t know. But so long as the participants in the social contract don’t understand or consent (and that’s dangerous ground) to the current understanding, that’s going to create the friction we’ve seen in every election year since 2004, will it not?
The only ignorant things I’ve seen on this topic are the self-proclaimed educated ones calling populist movements ignorant. Here are the facts. It doesn’t matter whether your educated opinion is that groping someone is no big deal when a large part of the populous believes it is. And if you credentialed ones don’t get a grip on what’s going on with the citizens in this country, we may soon be forced to choose between the leadership styles of a Washington or a Bonaparte. One path leads to a new age of enlightenment, the other to 200 years of death and destruction. History has shown that the educated are the key stone of nations. Archeologists have discovered they were merely smart rocks when they ignored the mob.
James and Shaun,
I may be overstating my case. I find at least some, if not most of the elected or wannabe elected Tea Party politicians to be rather repugnant. From Michele Bachmann to Joe Miller, I don’t see anything particularly appealing or more noble than the worst of the Democratic and Republican career politicians. In fact, in some of these Tea Partiers I find a level of manipulative demogoguery that is positively un-American. Rep-elect Allen West is a prime example. Even if you can ignore the disgraceful fashion in which his military career ended, which I can’t, you have to be concerned with his xenophobic hyper-patriotism.
I do not for a moment doubt the patriotism or sincerity of the rank and file Tea Partiers, but there is not much to like in their leaders.
Shaun, you’re acting like there was a time in this country when the average person could figure it all out on their own. That has never been the case. Wasn’t the case in England, was never the case here. Even when the Constitution was young and the courts were still in their nascent form, it was never so easy to understand that lawyers and legislators didn’t need to exist.
Why else would lawyers even exist?
I’m not saying that people don’t need to challenge authority – that’s what America is based on. But there’s a right way and a wrong way to do it. My point remains that the way I see most frequently – namely, calling everything unconstitutional – is the wrong way.
Darrell,
I think that it is premature to be worrying about the mobs storming the Capitol with torches and pitchforks. However, it is time to be concerned with the consequences of the general failure of our public schools to prepare our youngsters to become informed citizens. I’m not talking about everyone being an Ivy League intellectual–I talking about understanding our form of government at the ninth-grade civics class level of comprehension.
In Brian’s original posting on this subject, he references the satire piece in The Onion featuring the guy who supports the Constitution as he understands it. It would be hilarious if it wasn’t so close to the truth, as most good satire is.
@HisRoc –
One can say (and there are those who do say) the very same things about the leading lights on the Democratic left.
Worse still, the way modern American politics is heading, demagoguery is the MO of both sides. I don’t find it altogether surprising that we find no heroes on either side, precisely because neither side permits heroes.
@Brian –
People don’t have to figure it out… they merely have to understand.
Right now, they don’t. And until they do, they will not be silent. Again — until one understands and sympathizes with this basic sticking point, there is no possible way to understand either the Tea Party or the wave that elected BHO.
Wow!! I think it’s phenomenal that this discussion is taking place.
There’s one part of the Constitution that no one has mentioned and it’s, perhaps, one of the most relative parts to this huge discussion we’re having – the authority for Congress to deal w/ the country’s monetary system. In all likelihood, this discussion might not be taking place if we adhered to the gold and silver clause in the Constitution.
The false world of fiat currency leads to political discussions that occur outside the context of reality. Our currency, just as every fiat standard of the past, will fail. Once it does, the political environment will be forced to operate within the boundaries of real debt and direct taxation – not fractional reserves and inflationary theft.
This is my rebuttal to Brian Schoeneman in “Calling Everything Unconstitutional Demeans the Constitution.”
I give much credit to Thomas E. Woods, for it is from his Nullification book that I drew most of the following from.
When I read what you have said above it appears to me that you are arguing for a “living” Constitution. This still leaves us with the question of who decides what these changes will be? While the Constitution does allow for amendment, this is NOT what you have outlined above when referring to Constitutional interpretation. What you have basically argued for is that the federal government gets a monopoly on deciding how the Constitution shall be interpreted. This kind of thinking leads to the federal government granting itself all kinds of new powers as it re-examines what the Constitution really ought to mean. Would you rather us ignorant, unreasonable, and paranoid “strict constructionists” take the alternative Britney Spears approach: “I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens.”The states would never have ratified the Constitution with the knowledge that the Supreme Court would by the final say in all things Constitutional. Only one seeking to enlarge their own powers (federal government) would take such a position.
Regarding General Welfare Clause:
James Madison said in Federalist #41: “For what purpose could the ENUMERATION of PARTICULARS be inserted, if these and all others were meant to be included in the preceding general power?”
James Madison in 1792: If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.” ~ Adrienne Koch, Jefferson and Madison, 129
Translation: Things you call constitutional were, according to James Madison, clearly obvious violations of the Constitution.
Regarding the Necessary and Proper clause:
From the state ratification conventions:
George Nicholas (Virginia): “it was no augmentation of power,”
James Madison (Virginia): the clause “gives no supplementary powers.”
Archibald Maclaine (North Carolina): “the clause gives no new power.”
Chief Justice Thomas McKean (Pennsylvania): it “gives to Congress no further powers than those ENUMERATED.”
James Iredell (North Carolina): said the same thing.
Even Alexander Hamilton noted that the Constitution would have been in no way different had this clause not been included at all in Federalist #33: “it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain SPECIFIED powers.”
“In sum the records make plain that the necessary and proper clause was merely designed to specifically authorize the employment of means to effectuate, to carry into execution, GRANTED powers, not to augment them, and they strongly read against the doctrine of implied powers.” ~ Raoul Berger, Federalism, 89
Necessary means necessary not merely “convenient.”
Regarding how Constitutional powers should be interpreted:
From state ratification conventions:
James Wilson (Pennsylvania): “everything not expressly mentioned will be presumed to be purposely OMITTED.” ~ Berger, Federalism, 65
Alexander Hamilton (New York): “whatever is not EXPRESSLY given to the Federal Head, is reserved to the members.” Important to note the following for later: “The people moreover, had “already delegated their SOVEREIGNTY and their powers to their several [state] governments; and these cannot be recalled, and given to another, without an EXPRESS act.” ~ Kurt T Lash, “The Original Meaning of an Omission: The Tenth Amendment, Popular sovereignty, and ‘Expressly’ delegated power,” Notre Dame Law Review (2008): 1907.
Samuel Johnston(North Carolina): “Congress cannot assume any other powers than those EXPRESSLY given them, without a palpable violation of the Constitution,” adding that the “powers of Congress are all circumscribed, DEFINED, and CLEARLY laid down. So far the may go, but no farther.” ~ Lash, “Original Meaning of an Omission,” 1907; Berger, Federalism, 64.
Charles Pinckney (South Carolina): the federal government could not execute or assume any powers except those that “were EXPRESSLY delegated.” ~ Berger, Federalism, 1892
James Madison (Virgina) emphasized the same point repeatedly both in the Federalist and at his state’s ratification convention. Federalist #40: “the general powers are limited; and that the States, in all unenumerated cases, are left in enjoyment of their SOVEREIGN and independent jurisdiction.” In #45 he says: “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. At the Virginia Convention he noted the federal government would have “DEFINED and LIMITED objects beyond which it cannot extend its jurisdiction.” Berger, Federalism, 64
In 1789, Salem Mercury of Massachusetts published Roger Shermans Observations on the New Federal Constitution, and the Alterations That Have been Proposed as Amendments; Sherman was a Connecticut lawyer who signed the Constitution, and a future U.S. representative and senator. Sherman concurred with the above: “The powers vested in the federal government are particularly DEFINED, so that each State still retains its SOVEREIGNTY in what concerns its won internal government, and a right to exercise every power of a SOVEREIGN State, not EXPRESSLY delegated to the government of the United States.” ~ Lash, “Original Meaning of an Omission,” 1905.
Sovereignty of the States is of utmost importance to this issue:
1. Declaration of Independence (1776): The fourth section of the Declaration states: the colonies to be “free and independent states”, and thus claimed the right to do everything sovereign free countries do.
2. The Articles of Confederation (1777):It began by saying “Articles of Perpetual Union between the states of…” and listed the states, from north to south. Article I said, in full, “The Stile of this Confederacy shall be The United States of America.” Article II added “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
The definition of “perpetual” at the time simply meant that there was no built in stop date.
3. Treaty of Paris (1783): Article one says “His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; that he treats with them as such, and for himself, his heirs and successors, relinquishes all claims to the Government, propriety and territorial rights of the same, and every part thereof.”
Note: King George was required by the terms of the treaty not to admit that “America” was independent or that “The United States” was independent, but that the thirteen named states were independent.
4. Ratification of the Constitution (1787): The Federalists, knowing the only way to win approval of the Constitution, insisted during the ratification debates that the states were individual parties to a federal compact. The Bill of Rights made this even more clear with the 10th Amendment: All other “powers not delegated to the United States by the Constitution, nor prohibited by it to the states,” are “reserved to the states.”
Emmerich de Vattel, a respected international lawyer of the eighteenth century, taught: “SOVEREIGNS posses all power they have not EXPRESSLY delegated, and therefore that ANY delegation of power by a SOVEREIGN must be construed STRICTLY.” ~ Emmerich de Vattel, The Law of Nations 1758
In the United States the SOVEREIGNS are the peoples of the various states, therefore when they delegated specific powers to the federal government via the Constitution, according to the accepted norms of international law, the specific powers should be construed STRICTLY. Thus the agent (federal government) is to hold only those powers EXPRESSLY delegated to it. According to John Page, James Madison, and Thomas Tucker the combination of the Ninth and Tenth Amendments had the effect of restoring the word “expressly.” Thomas Tucker the congressman who sought to add the word “expressly” to the amendment, was also the one who added “or to the people,” a phrase he considered more important even than “expressly.” Explicit reference to the principle of “popular sovereignty”, in the Constitution would, by the American understanding of the existing “law of nations” (international law), confine the federal government to only those powers EXPRESSLY delegated by the peoples of the sates. ~ Lash, Original Meaning of an Omission, 1919, 1920-24
By inserting the idea of “popular sovereignty” (“or to the people”), they restored the principle that the federal government possessed ONLY EXPRESSLY DELEGATED POWERS, any other powers it might further exercise have to be clearly incidental to the exercise of the delegated powers. ~ Thomas E. Woods, Nullification, How to Resist Federal Tyranny in The 21st Century, pg 37
This leads to the compact theory of the United States as described by Thomas Jefferson, John Taylor, St. George Tucker, Spencer Roane, Able Upsher, John C. Calhoun, Littleton Waller Tazewell, and others. The compact theory of the Union states that: The United States had been formed when the peoples of each of the thirteen states, each acting in its SOVEREIGN capacity, ratified the Constitution in the months and years following its drafting in 1787. (The very fact that the states voted separately to ratify the Constitution, hand that the Constitution was not ratified by a single, consolidated vote of all individuals in the original thirteen states, is an important piece of evidence to compact theorists that the states, rather than some single American people, created the Federal Union). They delegated to that government a SMALL number of ENUMERATED powers, reserving the remainder to themselves.
Conclusion: Constitutional Law does NOT EQUAL Case Law, and the Supreme Courts opinion is NOT final on those questions of interpretation:
“In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” ~ Thomas Jefferson, Papers of Thomas Jefferson vol. 30, 1 January 1798 to 3 January 1799, 536-43
Thomas Jefferson: “To Consider the Judges of the Superior Court as the ultimate Arbiters of Constitutional questions,” he argued, “would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps-and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depositary of the ultimate powers of society by the people themselves.” ~ Hampden, Genuine Book of Nullification, 110
“1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” ~ Kentucky Resolutions of 1798
“The states had not agreed to a system in which they would submit without protest to whatever the federal government should do. To the contrary, the states established a federal government with limited powers, and reserved for themselves all powers they did not delegate to that government. Any measures the federal government should take beyond the powers delegated to it are absolutely VOID. The federal government, which the states themselves created, cannot hold a monopoly on constitutional interpretation and cannot decide for itself what the extent of its own powers are. That would mean the people were governed by the mere discretion of their rulers rather than by the Constitution. Since the federal government, either as a whole or in its branches, is not and cannot be an impartial arbiter of disputes between itself and the states of which it is composed, it is up to each state’s own judgment to decide when the Constitution has been violated and how that violation is to be addressed.” ~ Thomas E. Woods, Nullification, 47-48
J. Christopher,
That is an interesting point that you raise and you are right that we won’t be having this discussion if we had stayed with a strict gold and silver standard for our monetary policy. We wouldn’t be having this discussion because we would probably still be living in a post-agrarian economy rather than a post-industrial one. Fortunately, the gold and silver clause includes bills of credit, which is what economist today call M sub 2 and M sub 3 in the money supply. I will grant you that careless monetary policy regarding that portion of the money supply causes problems, but oxygen causes corrosion–try living without it.
Lucas, I specifically argued that I was NOT arguing in favor of the “living constitution” theory. I am a textualist and that means I want a reasonable interpretation of the document based on the actual words used in the document. Justice Scalia is the leader in this line of thinking – he has stated in opinions that strict constructionism and living constitutionalism are opposites sides of the same coin and both are inappropriate.
Scalia (and I agree with him) believes strongly that laws, from the Constitution down to the lowliest municipal ordinance, should be taken at face value – they mean what they say. Not what the drafters intended, not what they thought they were doing, but what they actually did.
This line of thinking specifically would exclude all of the statements made by Madison, Hamilton, and others that you quote above because they would be considered legislative history and that’s entirely the point we’re trying to get away from. Madison’s words in the document itself are what matters, not what he said years after it was written or even while he was lobbying for its passage.
What the founders and drafters of the Constitution did was create a system of government that was vague and open to interpretation because they recognized that the government would necessarily be built upon over the years and they could not foresee or plan for every contingency. That’s why we have a system of diffuse power, with checks and balances. It works pretty well, most of the time.
As for the discussions about the compact of the states, nullification and the rest of the arguments that many put forward to attack federal power were arguments that were settled by the Civil War. The founders placed all of their faith in the states and little in a centralized government because they had seen the damage a centralized government could do. Had they been around to view the damage the states could do in the years before the Civil War and after, particularly in the south, they wouldn’t have put so much faith in the states as sovereigns. States can be just as tyrranical as any King could – just ask a black man in 1920s Alabama.
I believe in the concept that the states are the best level of government to ensure accountability to the people, but I have long since given up on the idea that the states are somehow better at protecting the rights of citizens than the national government is. They aren’t.
Shaun, I’m not saying they should be silent. I understand and I sympathize with the main point – that people don’t like where the government has gone and they want it to back off. But there’s a right way and a wrong way to make that point and that’s what I’m talking about.
Brian –
Now there’s the kicker. For instance, public education is no role for the federal government to play, but in Virginia a free and comprehensive system of public education is a constitutional right.
Same with Taxachusetts and Romneycare — the states have the authority to pass such laws.
I was posed that question regarding “where in the Constitution does it say the government should provide for education” in a leadership forum. The answer? Article VIII, Section 1… of the Virginia Constitution. I then proceeded to lecture about how no one could claim themselves to be a true constitutionalist without having read their state constitutions as well. That didn’t sit well with the resident Tea Party crowd that day, but it gave them some food for thought about how much had to be changed to get to Libertopia.
…and Brian, I would wholly disagree with you that the responsibility for understanding this is up to the common people. Rather, the responsibility is for the high priests to make it intelligible in the confines of the social contract.
Otherwise, expect a reformation.
Shaun – good for you, as that’s the right way of explaining it. There are a lot of rights that we as Virginians get – like the right to an education – that are granted by the State Constitution, not the federal one.
But when it comes to ensuring rights and protecting them equally, we have seen plenty of evidence – some from Virginia – that demonstrates that states can fall pray to the same kind of overreaching the federal government is often accused of.
And, again, I’m not arguing that the responsibility for understanding all of this is up to the common people. I’m simply saying that we all have the tools needed to figure this stuff out. What bothers me the most is when we get a bunch of “sea lawyers” (as I call them – folks with just enough legal understanding to whip up a mutiny, but most of it is wrong) yelling that this is unconstitutional and this is illegal, etc. when there’s no real basis to say that.
Those of us who are either in the political field or aspire to public office need to be able to answer these questions the way you did. I can definitely agree with you there.
Shaun and Brian,
Sometimes it helps to clarify a discussion if you focus on individual instances instead of the philosophical framework.
Last year after Rep. Joe Wilson’s outburst during the State of the Union address, I was reading the account of it in the Washington Post. In the comments section, some Einstein posted the following: “President Obama should fire Joe Wilson from the Congress and replace him.”
Now, of course, that is a particularly egregious example, but don’t dismiss the probably that this is someone who actually goes to the polls on election day and votes. When our public schools produce new citizens who are so woefully lacking in an understanding of the democracy that they live in, then philosophical framework is irrelevant–we have a bigger problem than political leaders speaking and writing in plain English.
Dear J. Christopher Stearns:
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
That is the only time the word “gold” occurs in the Constitution and it is clearly referring to what *states* may not do, not the federal government. Fail.
@Brian
“…but I have long since given up on the idea that the states are somehow better at protecting the rights of citizens than the national government is. They aren’t.”
Yes… let’s ask the Weimer Republic, Constitution and all. Actually, I can name a thousand more examples to where the National governments have suppressed the civil rights of individuals. How many do you need?
I argue that there were Northern states that comprised the North, as you elude to the Northern federal government …even though I disagree with your analogy. It proves that other states (North) came in and intervene when there is to be resolve, unlike a National or Federal Government.
As for your “reasonable interpretation” of the document, would that not be considered a “living” document argument just worded differently? I guess that’s why Obama put his two radical justices on the bench, because then they get to interpret it? And Justice Scalia normally has four other justices who disagree with him… So, where do they fall in line? Is this because you agree with him, he’s word is law?
@HisRoc
Why do you have so much contempt for the Tea Party? The article Brian posted was not from a Tea Party.
I believe, Tea Party members want to know what’s in the legislation…they pretty much know the Constitution even though they may interpret it differently than others. But this is obvious when we have 5-4 decisions in the Supreme Court. Obviously, they interpret it differently too. It’s bad when the people approving the bills don’t know what’s in them. Here are a couple of examples of what I’m talking about:
The Financial Reform that provided big bailout incentives to promote bad business practices and a brand new consumer bureaucracy. We know this will stifle our economy with rules and regulations. Meanwhile, the true problem with our financial crisis lies with Fannie and Freddie that still hasn’t been addressed and they’re still bleeding billions of $$.
What about Campaign finance Reform that provides cover for unions and special interest groups (i.e. NRA) but is intended to counter a recent Supreme Court ruling and eliminate the Tea Party?
I do not believe the make up of our country was built on the premise that we provide a blanket bailout for people who are being irresponsible and the elimination of groups to assemble. These are some of the questions I see being asked?
But, my questions is, why do you have so many problems with the Tea Party?
I don’t need any – I’m not saying that national governments are better at protecting the rights of individuals. I’m simply saying that it was the founders belief that state governments were better at protecting the rights of individuals than a national government would be. That was the major thrust behind the need for a Bill of Rights and it was a primary view of Jefferson and Madison.
That view, in my opinion, has been discredited – if the Civil War was not enough to discredit it, nearly a century of Jim Crow in the South has more than sufficed. That’s why I believe that the best way to ensure the rights of an individual is to strike a balance between state and federal power – not devolve all power to the states, but not concentrating all power in the hands of the central government either.
No, the reasonable interpretation view of textualism isn’t the same thing as the idea of a “living document.” Regardless of which view you ascribe to, from strict constructionism through to the living document theory, everyone is applying an interpretation to the document. It’s simply unavoidable – the Constitution is too ambiguous to not be interpreted. The living constitutionalists want to take every phrase and draw it out to ridiculous conclusions through leaps of logic that sometimes defy comprehension. How anyone can find an inherent right to abortion in the Bill of Rights simply doesn’t make sense to me, and to many others.
What I want to see is simply a reasonable interpretation – one that makes sense and doesn’t require a dozen dots be connected to get from the Constitution to the policy. Scalia believes in that theory, as do I, but I don’t believe in it because he does. I think it’s the right way based on my own opinion of the law and my own belief in how laws should be drafted and construed.
@Brian,
Yes, yes…I know you call yourself a “textualist.” Your textualism is so full of contradictions, let me see where to begin. I find it interesting that in your blog post http://bearingdrift.com/2010/11/26/calling-everything-unconstitutional-demeans-the-constitution/ you pride yourself on reading the Constitution and understanding it in context:
“I’ve done my best to read as much as I can about the document, reading it scores of times, reading the federalist papers, reading the various ratifying debates and other scholarly works on the document. For those who want a good background on the document, I strongly recommend America’s Constitution – A Biography, by Akhil Reed Amar. It is critical that all of us who claim to be constitutional conservatives not simply know the text of the document, but understand it in context, both the context of its drafting in18th century America, and the context of the major epochs of constitutional interpretation.” ~ Brian Schoeneman
Yet you so quickly dismiss all the quotes and historical context I provided above, by stating:
“This line of thinking specifically would exclude all of the statements made by Madison, Hamilton, and others that you quote above because they would be considered legislative history and that’s entirely the point we’re trying to get away from. Madison’s words in the document itself are what matters, not what he said years after it was written or even while he was lobbying for its passage.“ ~ Brian Schoeneman
You then proceed to further your argument by claiming the intent of the founders and drafters:
“What the founders and drafters of the Constitution did was create a system of government that was vague and open to interpretation because they recognized that the government would necessarily be built upon over the years and they could not foresee or plan for every contingency.” ~ Brian Schoeneman
This is rather odd since you don’t actually use any facts, quotes, historical context, and are completely lacking in proof to back this claim up. No where in the “text” can you find anything remotely close to: “this document defines a vague and open to interpretation form of government waiting for the supreme court to rewrite me and re-interpret me.” If your argument above is not an argument for a “living constitution”, I don’t know what one is. Yet you use this baseless claim as a counter argument to the many facts, and quotes I have given in historical context as to what system of government the framers and drafters gave us. Where is your proof that this is what the founders and drafters of the Constitution created? Since you are a “textualist” and abhor “legislative history” as you call it, I am assuming you can do this with the “text” of the Constitution alone, and need no quotes, or historical context.
In case you have forgotten you definition of a textualist as you defined it in you prior blog post http://bearingdrift.com/2010/11/26/calling-everything-unconstitutional-demeans-the-constitution/:
“I consider myself to be a “textualist,” which means I want to focus on the words of the document itself and give them a reasonable interpretation, not focusing on the intent of the drafter (originialism), nor taking the strictest meaning of the language (strict-constructionism). Nor do I want to read into them things that aren’t there but could be there if we start wrapping the gauzy framework of penumbras and emanations around the text (living constitutionalism). The Constitution, in my opinion, should be read as it was written, given a reasonable interpretation and be given a construction and that doesn’t make any part of the document superfluous or unnecessary.” ~ Brian Schoeneman
How can one pride themselves on “not simply knowing the text of the document, but understanding it in context”, and yet want to “focus on the words of the document itself and give them a reasonable interpretation (“textualism”), not focusing on the intent of the drafters or ratifiers (historical context).”
I will never reconcile letting a few high priests in black robes re-interpret the Constitution as they see fit and calling that Constitutional. Oh I know you will say that you don’t believe in a living constitution, yet you clearly have stated that “the founders and drafters of the Constitution did was create a system of government that was vague and open to interpretation.”
I guess this guy cheapened the Constitution also when he called the federal government out on their usurpations?
“There are two measures which, if not taken, we are undone. First, to check these unconstitutional invasions of state rights by the federal judiciary. How? Not by impeachment in the first instance, but a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are CONTRARY TO THE CONSTITUTION; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their USURPATIONS? ~ Paul Leicester Ford, ed., The Writings of Thomas Jefferson, 10 vols. 10:192
Lucas, you’re inventing contradictions because you’re trying to find ways to attack my argument, rather than simply reading what I’m writing. Yes, I’m a student of history, particularly political history, and I’ve taken the time to read a lot about the Constitution, the founders, what they’ve written and how they viewed what they wrote. I understand the context in which it was written and as I said, that understanding informs my opinion on statutory construction.
But that doesn’t mean that I use that context when it comes to how I believe the issue of interpretation of the constitution should be handled. I think it’s important to have the backstory, but all of that information makes little difference when you’re dealing with the actual text of the document itself. While I give credit to Madison for writing the document, he was also a partisan and I would rather trust the words he wrote when he wrote them than arguments he may make about those words years removed and in the middle of some other debate he’s trying to win.
While I am a textualist and that’s how I view the Constitution, my opinion matters, but only to the extent that it is part of my overall political philosophy and decision-making process when I go to the polls and elect Congressmen and Presidents. I’m not the President, I’m not in Congress, and I’m not on the Supreme Court, so I am far removed from the process of making an interpretation that will stick. While I want the Constitution to be interpreted textually, I also acknowledge and accept that it hasn’t always been so read. I accept as precedent cases that I disagree with, like Planned Parenthood v. Casey, Kelo v. New London and others because I respect the role the Court plays in the process. And when I do go so far as to call something unconstitutional, my determination is based on current law (the kind you said isn’t Constitutional law, which is simply incorrect), not my belief in what the law should be.
When I said the document was written ambiguously I wasn’t hypocritically claiming the intent of the founders to bolster my argument – I was being factual. It IS ambiguous. Almost nothing was defined in the document – off the top of my head, only the crime of treason was truly defined. You can’t expect a fine attention to detail that fills in all the gaps in a document that’s less than 5000 words long. But that was never the point and you don’t need to know anything about the founders to recognize that. Based just on length and use of language alone, the document must be interpreted.
You want a detailed response to your quotes – ok.
1. “General welfare clause” – As I have noted before, there is no general welfare clause. It’s the “tax and spend” clause and the phrase general welfare is used to describe what Congress and tax and spend for. Madison’s point is valid – the tax and spend power does not create a general police power in the federal government like the states have. The Courts have generally been unwilling to interfere in the Congress’ determination of what taxing and spending is okay, so if Madison hadn’t wanted the tax and spend power to be as broad as it has become, he should have written it more narrowly.
2. “Necessary and proper clause” – This was the first big debate of the nascent constitution. And while it – by itself – does not grant any new powers beyond the enumerated ones, what it does is provide a means by which the federal government may engage in things not specifically enumerated as long as they further the use of an enumerated power. That’s an argument that ended with McCulloch v. Maryland. The clause augments powers that already exist – it doesn’t create new power. Not even the living constitutionalists argue that it does.
Your conclusion that the Supreme Court’s interpretation is not final ignores reality. While I agree that all three branches have a duty to ensure that the Constitution is followed, since Marbury, the Supreme Court has been the primary body that has construed the document. We all saw the hue and cry that some raised over Presidential signing statements during the Bush Administration – those signing statements were his attempt to construe the Constitution based on an executive branch interpretation of the document. They were viewed as invalid and a usurpation of the Supreme Court’s authority – an authority that wasn’t granted by the Constitution to begin with.
As for your other theories, again, the Civil War ended many of the arguments about the relationship between the states and the ability of the federal government to interfere in internal state business. The compact theory is no longer valid. If the states are truly sovereign, they should be able to leave the union at will. They can’t. Not only have we proven that by force of arms, the Supreme Court has also held that secession is unconstitutional. The 14th amendment directly interferes in state law and much of the Bill of Rights has been incorporated to apply against the states. Most of those arguments you’ve listed are arguments made in an antebellum world. That world no longer exists.
As an aside, you’re not going to win any points with me on Constitutional law by quoting Jefferson. Jefferson wasn’t at the Constitutional Convention, he didn’t sign the document, and he had his own reasons for taking the stances that he did. So, I would say yes, Jefferson did cheapen the Constitution when he said what he said. And that was his goal.
I think it’s important to point out that we’re having two separate arguments here that are being conflated: 1) What is and isn’t constitutional under our current understanding of the Constitution (which is what the point of my main article was) and 2) How should the Constitution be construed.
It demeans the Constitution when people ignore the body of law that has been crafted over the years under the Constitution – as I noted to Shaun, doing so undermines the legitimacy of the government and the Constitution itself. That’s not to say that people shouldn’t have an opinion on how cases should be decided, but that should generally be a forward looking test, not a backwards looking one – especially in situations where the question has been well-settled.
It’s a Sisyphean task, Brian. Good luck.
[...] was a time, I believe it was in 2007, when I declared that blogospoheric dustups like the Kenney-Schoeneman battle over constitutionality could not happen while I was away from the blogosphere. [...]
Know what is so simple to understand that you don’t need some legal technocrat to act on your behalf or explain the obvious to you? Why you need government and when obvious over reaching is in progress. The general idea of a Constitutional Republic with Democratically elected representatives sounds complicated but as a concept is easily digested. ………even by we little people with no legal training.
The idea that we form a government which holds each individual as having equal and natural rights is simple. You enter into a power sharing arrangement where everyone can benefit from group effort, specialization (like you lawyers), and economies of scale WITHOUT fear of fraud, legal theft, or lawless injury.
What I am seeing here is a demonization of specifically the Tea Party and some of their high profile candidates or orgainizers. Not that some are not flawed. Still this is a new movement and not all will be polished.
I am also seeing an arrogant view that some seem to hold in regard to certain people not being “smart enough” to speak on these things and others should just “sit down and shut up”- let the legal technocrats take care of you and trust us to never abuse your blindness to our abiltity to steal rights, power, and money from you.
@ Brian S., of course he is attacking your arguement and not just reading what you’re writing. I would think a legal guy would appreciate that. Further your assertion in your past article that calling something unconstitutional equates to labling someone as a traitor, is absurd! Theft or even direct physical harm does not rise to the level of “traitor”. If you’re trying to frame things, that might make convenient rhetoric for you, eventhough it is completely a reach. “Traitor” in intent is different than just an illegal act.
We do have to respect our system and I agree that over use of “that’s unconstitutional” cheapens the charge. That does not mean that we can not excercise that 1st amendment and cry out about Kelo vs. New London being unconstitutional and how that needs to change asap. Yes, that does mean waiting for newly appointed judges to tip the scale. And this crap about settled law is just that. “Settled” legalized abridgement of rights is still theft of rights. So much sir, Virginia in great wisdom made what the Supreme Court ruled on as being illegal in the commonwealth. Thered is great reason for Joe Sixpack to scream “that’s unconstitutional” regardless of your assessment of the Supreme Court as being beyond error legally.
Britt, I am not trying to argue that anyone is too stupid to understand this stuff, nor am I trying to argue that only those with legal training should be allowed to discuss it. If some of the brain dead 23 year olds I go to school with can learn this stuff, anyone can – especially those who are highly motivated and want to learn, which has been my experience with most Tea Party activists.
My argument is simple: calling everything unconstitutional simply because you don’t like it demeans the constitution. While I think that Kelo and other cases the Supreme Court has issued are wrongly decided and should be overturned, that does not make them unconstitutional. It just makes them wrong. I certainly don’t think the Supreme Court is beyond error, but if you’re going to argue that something is unconstitutional the argument needs to be made based on the current state of the law.
My point about treason was not equating it. It was pointing out that, in my opinion, both terms are grave terms that should only be used when there’s a very, very good reason to. I think we’ve become too loose about it and that damages the fabric of the republic.
So if so many people here disagree on what is Constitutional vs unconstitutional, I’ll throw to the crowd another question:
When do government officials, through the forced acquisition of the wealth of the people, transition from a group of representatives into a gang of muggers?
Ask the Byzantines, James.
Fortunately, that hasn’t happened here yet. Not even close.
So hypothetically Brian, if the Supreme Court is so stacked through horrible luck or design, and they rule that an arrest of somebody for publicly criticizing the sitting President on their blog is consitutional, that isn’t unconstitutional? Just because it was a ruling by the Supreme Court of the United States? Assume there were no threats or treasonous leaks, just criticism and excercising of the 1st amendment.
In my thinking, just because it is your job under the Constitution to deliberate on how the Constitution applies to legal matters, that doesn’t mean you can’t thwart the Constitution and rule due to criminal self-interest or perhaps out of fear of your life.
Extreme hypothetical there, I know. I’ m just trying to make sure I am understanding your arguement.
To me, Kelo vs. New London is more than just incorrect, it is obvious damage to our property rights that are supposedly protected by the Constitution. When you reach a certain point on things in regard to takings for the public good or you frame the question and abuse meanings of general welfare or public good, you cross the line from being a constitutional republic to being a “mob rule” democratically elected omnipotent government able to trample on the rights of others as they please. At that point, the elected or appointed, would only need to fear a popular dissatisfaction with whom you persecuted during your tenure and you might later be thrown out of your position and possibly have YOUR rights taken after enough changes were made on election day.
To me, rulings made that are counter to the Constitution can be reasonably described as being unconstitutional. Does that mean we can do anything about it other than vote and lobby for change. No, we must respect and work with the system we have. However, I think the description is fitting.
I do agree though, that one could go on such a spree of yelling, “unconstitutional” that it loses meaning and cheapens true arguement. I will also admit that some Tea Partiers are less than perfect. It must be pointed out that Tea Partiers did not invent the idea of “that’s unconstitutional”. The recent movement is new, the description is not. At least a good number of Tea Partiers think very highly of the document. Libertarians do, as many Republicans and Democrats. The Civil Rights movement comes to mind. The concept did not originate with the Tea Party and sometimes there is reason to be screaming, “that is unconstitutional!”
Britt, no – because they would necessarily have had to develop a ruling and some kind of a rational reason as to how they construed the Constitution they way they did. If it’s something completely ridiculous like that, they would be opening themselves up to all kinds of problems – from Congress amending the Constitution, cutting off their funding, packing the Court, etc. The folks who drafted the law would probably end up being thrown out of office and it repealed by the new batch.
There are plenty of ways to challenge laws one believes go beyond where they should – but you don’t have to label it unconstitutional, especially if it isn’t.
Our whole system is designed to ensure that ridiculous outcomes like your hypothetical don’t happen. And usually it works.
Kelo is incorrect, but it’s not unconstitutional. It’s the logical extension of a line of cases the court has been crafted over the years – but it went too far. The states are pushing back against the ruling, as is Congress, and that’s the right answer.
Calling it unconstitutional is simply inaccurate – it’s wrong. But it’s not unconstitutional.
And, again, I’m not saying that every time someone is claiming something is unconstitutional is bad. There are good examples of where it’s the right answer and the right thing to do, but it’s not something we should just be throwing out and not backing up. Calling Social Security, medicare, and the other programs I mentioned unconstitutional is just plain wrong. It does no one any good when those statements are made and not confronted.
In regard to the hypothetical, I would hope so. I guess their act of supporting something unconstitutional wouldn’t in and of itself be unconstituional eventhough the result would be. Even if I yield that much in symantics, there is still reason to call it unconstitutional in effect.
For the most part, I agree with your arguement on the entitlement programs. DJ sets up some good arguements on that. Not necessarily unconstitutional.
The Christmas Food Court Hallelujah Chorus might be unconstitutional but I liked it.
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