Posted on 12/27/2009 2:59:51 AM PST by Jacquerie
Much fuss is made at this forum regarding the presumed haziness of the “common Defense and general Welfare” clause and the enumerated powers that follow in Article I, Section 8 of the Constitution. If you are not sure, or think this section is ambiguous, or actually does grant unlimited power to Congress you are in wide company. You are confused at best, but at least you have lots of company.
Our 18th Century Framers were precise grammarians. It took months of often heated debate in the stuffy, hot, State House in Philly to thrash out every concept, idea, detail, clause and yes, punctuation, that ended up in our Beloved Constitution. From James Madison’s notes, there is no question that every single detail had first to pass a committee composed of a few members, and then survive withering examination of the committee of all state delegates.
First, look at Article I Section 8. http://www.constitution.org/constit_.htm .
Notice that there are many semicolons and only one period, at the very end of the entire Section. That is right. Section 8 is a single, long sentence. It is also one thought, the enumerated powers of Congress. As any sixth grade private school student and a few government high school grads know, the semicolon is used between closely related main clauses. Thus, there is no disconnect between the declaratory clause (common defense and general welfare) and the enumerated powers which follow. The enumerated powers are components of a single thought, to provide for our common defense and general welfare.
The Framers began with a broad statement, “provide for the common Defense and general Welfare,” and then got into specifics in the same sentence. It is no error or oversight that Article I, Section 8 was written as it was. It was purposely done in order to make sure that a reasonably literate people could not ignore, confuse or abuse its meaning. Congressional powers are strictly limited to those enumerated.
When viewed this way, the words of James Madison in Federalist #41 are perfectly clear: “Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of the 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.”
Even absent Madison’s comments, the grammar, and punctuation combined with long length, unique to Section 8 remove all doubt as to the relationship between the common Defense and general Welfare clause to the enumerated powers that follow.
Those who cannot grasp this concept probably have a graduate Political Science degree, or perhaps are a Supreme Court Justice or a certain 42nd President of the United States and Constitutional Lawyer who wondered what the meaning of the word “is” is.
Or, they could be statists intent on National Socialist Healthcare.
Thanks for the ping!
People who think the "common defense and general Welfare" clause is "hazy" evidently have been taught to understand Article I Section 8 in a manner completely out of the context given by the DoI and the Preamble.
Boiling it all down, the DoI tells us who the We the People are. The Preamble tells us that We the People are the ultimate source and authority of our constitutional system of government; that the purpose of the People's ordaining and establishing the Constitution is finally "to secure the Blessings of Liberty to ourselves and our Posterity." They were not surrendering their native, sovereign liberties to the federal government (were this so, the 9th Amendment would be pointless). Rather, they were delegating certain enumerated and limited powers to Congress to discharge on behalf of the People.
In short, Congressional power is NOT in any way "unlimited." If it were, the entire Bill of Rights would be senseless. For the BoR is nothing but a statement of the constraints on Congressional power agreed to and imposed by We the People as the principal of the Constitutional charter; the Congress is in the position of agent. In the principal/agent relation, the former is the "sovereign" party, the latter the executor, or "servant" of the principal in the exercise of the enumerated powers granted — and only those granted powers. Last time I tried to count the granted, "enumerated" powers of the Constitution, I came up with the number: 28. [I invite anybody to get their hands on the document, and try to make their own count. I'd love to see what you'd come up with!]
If so, this would mean there are only 28 ways in which the federal government in its several branches can legitimately act under the Constitution. Anything else or beyond the granted powers would be understood by the Framers as an illegitimate usurpation of the just powers/unalienable rights of the People — the People's retained rights, which are made explicit in the DoI, the Preamble, and the BoR. Even with respect to the delegated powers, the People are the "answerable authority" that Congress, as the People's delegated agent, MUST respect.
Note also that the Constitution has zero authority to regard the People in terms of group affiliation of any kind. The entire philosophical complex of our Founding Documents deals only with the individual human person, and this mainly in Judeo-Christian terms (as the DoI makes explicit). In short, Justice inheres in persons only, not in groups....
However, when legal positivists and nominalists read the texts, they do so as if the texts were unconnected with any larger system of ideas that would shed light on their meaning. In a sense, they "deconstruct" the Constitution, by saying, in effect, "the words speak for themselves," the texts are whatever they might happen to mean to the reader, without regard to the intent of the author of the texts, which are de facto held to be perfectly irrelevant to constitutional jurisprudence. That's where the "living Constitution" B.S. comes into the picture.
Don't get me wrong: I also believe the Constitution is a "living" document. But not in the Darwinian manner of the legal positivist/nominalist persuasion, which basically seems to hold that the "life form" of the Constitution has to be created anew by changing it.... It is "living" because it is capable of being "changed" — by them.
As pointed out already, the larger system of ideas that motivated the intent and purposes of the Framers is captured in the DoI, the Preamble, and the BoR. THAT is the context in which the Constitution is supposed to operate, "for the benefit of ourselves and our Posterity."
Anyhoot, just some thoughts, Jacquerie, FWIW. Thank you so very much for your excellent essay/post, and for pointing out what should be obvious: that the Framers were, indeed, the most punctilious of grammarians! Now all we need is people who understand English grammar.... But they seem to be getting as rare as people who understand what the Framers were up to, in designing the Constitution the way they did....
Surely this state of affairs demonstrates the utterly abject failure of so-called public education nowadays....
So all I can say is: "GO, Home-schoolers!" The future of our culture seems to be in your hands....
I thoroughly agree yet again.
Thanks.
Actually, they could.
What couldn’t imagine was the popular election of senators, universal suffrage, or the level of the Federal governments intrusion into the election process. IIRC, initially, only property owners could vote.
Nowadays, my vote can be canceled out by welfare recipient who has never been financially independent or paid a penny in income taxes in his entire life - and they call that “fair.”
(1) These magnificently punctilious grammarians "also" crafted one of the greatest (and most concise) literary masterpieces in the history of the English language.
(2) What is increasingly less appreciated in our own time is that the Framers' design was fundamentally premised on a system of SELF-government. Something that had never, ever been seen in the world before, a world in which priests and monarchs, et al., had been accepted as the necessary "intercessors" between God and Man, just to get quite normal things done in daily existence, since most people — living in what Eric Vöegelin has described as the Ecumenic Age, in which "primitive" and "tribal" forms of existence were increasingly displaced by "organizational principles" to be contrived by an expert (priestly–political–bureaucratic) class; and then from there, imposed direct pressure on the "subject" people "from on-high," whether the pressured people liked it or not. Historically speaking, they usually didn't.
[N.B.: The events we revere and remember at Christmas took place in precisely such a milieu, or "crucible" of forces.... ]
Yet the Framers, being of Christian temperament, believed in (or as some might have termed it, recognized the "self-evident truth" of) human free will. Thus, to me it seems that, bottom line, what the Framers proposed was that Man should live in openness to God, exercise/enjoy the gifts that God gave him, and live in the virtue of God's love and justice....
Such a view clearly has Judeo-Christian roots, and roots in classical Greece, as well. Maybe this latter aspect could be a topic for another time.
It is my view that "self-government" is rooted in two moral qualities, the first being the ability to govern oneself, the desire and willingness to govern oneself, and the second being respect for neighbor which is in part how "love thy neighbor" plays itself out in the practical world.
Freedom requires a moral center of gravity in a society or the society ceases to be free, in fact in the absence of a generalized moral sense freedom becomes an unbearable burden and people will gladly shed it, they will demand that their betters relieve them of it.
Loving obedience to God, and love of neighbor are the twin roots of both rule of law and constitutional liberty. When they atrophy freedom shrivels and dies.
Probably because they, having just engaged in a revolution over things far less onerous than the tyrannical actions you have noted, would have thought there would have been a second (corrective) revolution long since....
On closer reading of your posts, I still greatly and thoroughly agree.
Not sure I can add much more.
Personally, I would like to see . . . The Constitution, The Declaration of I and the Bill of Rights . . . printed on very unpalatable cardboard . . . then Pelousey and Finestein sp? both required to memorize all those docs . . . and then have to eat every particle of all those docs. Then be tried and sentenced and . . . fittingly punished . . . for horrific treason.
But then they are but stooges of the worse evil doers behind the scenes.
. . . who have been shredding those documents for decades.
Any noun could be capitalized under the rules of proper English grammar for the time.
All points are spot on as near as I can tell through these droopy eyelids. Our Founders no doubt wrote the Constitution so that We The People could understand it. Like Jacquerie pointed out, the only people looking to parse the language and discover subtle nuances are our would-be masters.
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This is the first and great commandment.
And the second [is] like unto it, Thou shalt love thy neighbour as thyself.
On these two commandments hang all the law and the prophets. – Matthew 22:37-40
I like your use of the word "honor". Its an almost forgotten word, and almost everything hangs on it.
That is a topic worthy of a long essay. Our Constitution was a bulwark against the worst aspect of human political nature, the tendency to accumulate power. It worked this way until we let the courts run wild.
You bring up so many other great points . . . among the saddest is denial of the Judeo-Christian foundation of our governing philosophy.
That is so lost on so many today. Self government evolved here of necessity. Small bands of colonists in the wilderness had little choice but to band together. England was embroiled in civil wars for much of the 17th century and largely ignored the colonial's political evolution. The French knew England would be of little help and paid various indian tribes to attack us. Things were so bad that a few northeastern states formed a confederacy for self defense. American self government was so advanced by the mid 18th Century that eventual independence was anticipated by many here and in England.
Indeed, Jacquerie: Many federal (and state) courts appear to be "not sympatico" with the idea of constitutional constraints; so they just ignore them. No wonder our society is increasingly a madhouse these days! To undermine the rule of law leaves the society in a state of moral ambiguity, turmoil, uncertainty....
I think it's safe to say that the Framers recognized that state-vs.-individual political power was perhaps the only true zero-sum game in the world. In this we can discern the influence of Thomas Hobbes (Leviathan) and John Locke, the philosophical genie behind the Glorious Revolution of 1688.
The zero-sum consists in the fact that the more the power of the state, the less the power (liberty) of the person. Thomas Jefferson accordingly spoke of how this zero-sum power game plays out in political reality: "When the government fears the people, there is liberty. When the people fear the government, there is tyranny."
I imagine that many/most Americans nowadays are simply terrified of Washington... and with good reason....
FWIW. Thanks so very much for writing, Jacquerie!
This observation may seem hard-hearted of me, but here goes anyway....
"Such people [as] must be managed like animals from womb to tomb because they have no honor to manage themselves" aren't even fully human. They deserve to be managed like livestock. They have moved into a fantasy world that seems strangely like a retreat to the "womb": Everything must be done for them.... There must be some kind of new "Back to the Womb" movement going on here....
Needless to say, such an ideology is poison to a just socio/political order founded on the principle of individual liberty.
This must constitute some kind of refutation of evolution theory; for it seems species not only can evolve; but they also can devolve — back to a more "primitive" state....
Charles Darwin, please call your office!!!
Thank you so very much, dearest sister in Christ, for your excellent post, and kind words of support!
Yes indeed. This is the type of person who believes he can spin an entirely new "reality" simply by manipulating words/language....
So glad to hear you had a wonderful Christmas, ForGod'sSake! Me too!!! :^)
BB .22, excellent and concise argument. I love it. Why can't our SCOTUS get this?
Jacquerie, thanks for the ping. As you know, I agree. Who was the FReeper claiming the Constitution was a flawed document? Where they in on this ping?
And most importantly is every FReeper teaching this to every child within earshot?
Beautifully said, marron. As ever.
The stunning irony in all this, to me, is that this nation tore itself apart over the compelling moral issue of freeing the slaves. And yet today, it seems so many people are frantic to stand in line, for the purpose of becoming re-enrolled as slaves, this time of the Big Massah in Washington....
I am mindful that before the federal government decided to "help" the "poor and underprivileged" people, by means of LBJ's Great Society programme, black families were overwhelmingly intact families, with a father present. "Underprivileged people" may have been "poor" in economic terms, but they were "rich" in personal dignity. Many if not most saw education and personal initiative as the trusted ways to improve one's personal condition, and to "step up" in society. Associate Justice Clarence Thomas exemplifies this tradition.
So what happened, at great taxpayer expense? Just look around you. It seems to me that any kind of "gummint help" is like pouring a caustic agent onto society with a view of "dissolving" it....
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