Ignorant About the American Constitution?

I'd like to enlist the services of my fellow Americans with a bit of detective work. Let's start off with hard evidence.

The Federalist Papers were a set of documents written by John Jay, Alexander Hamilton and James Madison to persuade the 13 states to ratify the Constitution. In one of those papers, Federalist Paper 45, James Madison wrote:

"The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State."

If we turned James Madison's statement on its head, namely that the powers of the federal government are numerous and indefinite and those of the states are few and defined, we'd describe today's America. Was Madison just plain ignorant about the powers delegated to Congress? Before making our judgment, let's examine statements of other possibly misinformed Americans.

In 1796, on the floor of the House of Representatives, William Giles of Virginia condemned a relief measure for fire victims saying it was neither the purpose nor the right of Congress to "attend to what generosity and humanity require, but to what the Constitution and their duty require." In 1854, President Franklin Pierce vetoed a bill intended to help the mentally ill, saying, "I cannot find any authority in the Constitution for public charity," adding that to approve such spending "would be contrary to the letter and the spirit of the Constitution and subversive to the whole theory upon which the Union of these States is founded." President Grover Cleveland was the king of the veto. He vetoed literally hundreds of congressional spending bills during his two terms as president in the late 1800s. His often given reason was, "I can find no warrant for such an appropriation in the Constitution."

Today's White House proposes and Congress taxes and spends for anything they can muster a majority vote on. My investigative query is: Were the Founders and previous congressmen and presidents, who could not find constitutional authority for today's bread and circuses, just plain stupid and ignorant? I don't believe in long-run ignorance or stupidity, so I reread the Constitution, looking to see whether an amendment had been passed authorizing Congress to spend money on bailouts for airlines, prescription drugs, education, Social Security and thousands of similar items in today's federal budget. I found no such amendment.

Being thorough, I reread the Constitution and found what Congress might interpret as a blank check authorization -- the "general welfare clause." Then I investigated further to see what the Framers meant by the "general welfare clause." In 1798, Thomas Jefferson said,

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

"With respect to the two words ‘general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

My detective work concludes with several competing explanations. The first is that the great men who laid the framework for our nation were not only constitutionally ignorant but callous and uncaring, as well. The second is it's today's politicians who are constitutionally ignorant. Lastly, it's today's Americans who have contempt for the Constitution, and any congressman or president upholding the Constitution's letter and spirit would be tarred and feathered.

On the other hand, I can’t recall where the Louisiana Purchase was specifically authorized in the Constitution, but I don’t see that it was specifically prohibited if the people wanted it.

Jefferson himself had major reservations about the constitutionality of the Louisiana Purchase. And, IMO, he overlooked those reservations because the idea of doubling the land area of this country, and seeing to it that such a large contiguous land mass did not fall into the hands of another, held more appeal than did the constitutional question. But, more than a quarter of a century later the Supreme Court (strangely) affirmed the constitutionality of his decision, ruling that the government could purchase new territory under its constitutional power to make treaties. They argued that the Constitution grants the government the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty (and we think modern Supreme Court decisions are nebulous and often unfounded?)

Whether we agree or not (and I certainly don’t, although the Purchase was an extraordinarily good thing), the point is that both the President, and the Court, were of the opinion that the Constitution afforded the federal government this right. They didn’t affirm the constitutionality of the Purchase on the grounds that the people wanted it. They affirmed it on the grounds that it came under the powers granted the federal government.

As opposed to today’s countless unconstitutional ‘we have to do it for the good of the people’ laws. There’s a world of difference in that specious philosophy, and disrespect for the rule of law, have completely taken the place of the question of the constitutionality of anything. The government simply has to convince the people that the law will be working in their best interest, and bam! You’ve got a new (generally socialist) law on the books.

Nowadays, the question of constitutionality isn’t even brought up. Did the President or Congress have any (meaningful) discussion about the constitutionality of the recent prescription drug bill? Or did they simply sign it into law, because of some nebulous (as they always are) precedent set by the myriad of other unconstitutional federal entitlement programs?

I agree completely with your last paragraph. All three amendments (17, 19 and 26) are scourges. And, as I suggested in my original post, and you affirmed in yours, they represent the stupidity of the Founders’ descendents – and, as a consequence, the stupidity of their elected representatives. But that doesn’t mean that the constitutional process should be ignored. There are bad laws. And there are bad amendments. But I would rather see three bad amendments tacked onto the Constitution than the library full of unconstitutional federal laws that are on the books (few of which would be, if an amendment -- good or bad -- were required to place them there).

~ joanie

Sorry to take so long in getting back. I've been indisposed for a bit (moving).

You quoted me thus: "And then see the last clause of Section 8 of Article I." And then you proceeded to quote from the first clause of Section 8. I'm talking about the last clause, to wit: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The power - indeed, the obligation - to protect the country from invasion is vested in the U.S. government, and any military force is clearly necessary and proper to that end. There is no corresponding grant of power when it comes to "general welfare". The clause you quoted, when quoted in full, is not a grant of power, but a limitation on the power of taxation.

Here is a little more (I posted this in FR on 11/06/2003)...

Years after the Federalist Papers, Madison used his seat in the House of Representatives to combat abuse of the general welfare term, as in this argument of 1792: "It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing. After giving Congress power to raise money and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, etc."

Further, Madison stated the "general welfare" term came from the Articles of Confederation, and, "it was always considered [in the Articles of Confederation] as clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms."

Madison warned, "If Congress can apply money indefinitely on 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 establish 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 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."

Madison and Jefferson owned a newspaper called the National Gazette. In 1792, the Editor, Philip Freneau, wrote a satire on usurpation containing these words: "... in order to render success the more certain, it will be of special moment to give the most plausible and popular name that can be found to the power that is to be usurped. It may be called, for example, a power for the common safety or the public good, or, "the general welfare" . . . If the people should not be too much enlightened, the name will have a most imposing effect. It will escape attention that it means, in fact, the same thing with a power to do anything the government pleases "in all cases whatsoever." To oppose the power may consequently seem to be ignorant, and be called by the artful, opposing the "general welfare," and may be cried down under that deception."

Since the "general welfare" clause delegates power to the Congress to provide for the general welfare of the United States, the 10th Amendment doesn't apply.

I don't expect to change anyone's mind. I'm just explaining what is right.

No. What you are explaining is a lie that has been promoted as the truth. If you knew your history you would have never posted that 1937 decision as a serious decision. You would know that the decision was not made freely, but rather out of intimidation (more like extortion) of the court by FDR.

So you are saying that Article 1, Section 8, Clause 1 allows Cngress to raise money for the national defence and general welfare, while Clause 18 does not allow laws to be passed concerning the general welfare, but it does allow laws concerning the nationl defense?

That wouldn't seem to make much sense on a practical or theoretical basis. Clause 18 says "the foregoing powers" which would seem to mean the previous 17 clauses, including the first one. I don't understand how "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;" can be construed as anything but a "power," and therefore covered by Clause 18.

To #47: A better question is whether the Air Force falls under the Navy or Army Constituional clause. The Air Force was the Army Air Corps -- that's one clue, and another I say would be in that the Navy -- being possibly shipbound on world-cirlcing voyages of years, is not constrained by the two-year appropriation limit, whereas the Air Force in their modern ships of the air can traverse the globe in a day or less. That is, imo, the AF is a legitimate branch of the Constitution's "army".

Article 1, Section 8, Clause 14 gives Congress the power to:
"To make Rules for the Government and Regulation of the land and naval Forces;"

I don't see how the Air Force can be construed to be a land force. I suppose plane do have to land, but no one would call them a land force because of that fact. Otherwise the navy could be called a land force because ships dock.

On the other hand, Clause 12 gives Congress this power:
"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"

So that would mean that Congress can raise money for an Army Air Force (Clause 12), but cannot make any rules governing it (Clause 14).

Following strict construction makes for some strange legal situations!

To #48: No, not "what is right", rather what is the tradegy of overapplication of "stare decisis"!

Overapplication? Hmmm. I'm trying to think of how things would go if the Supreme Court were to suddenly decide that Social Security isn't constitutional after all.

What you are explaining is a lie that has been promoted as the truth. If you knew your history you would have never posted that 1937 decision as a serious decision. You would know that the decision was not made freely, but rather out of intimidation (more like extortion) of the court by FDR.

It is no lie that the Supreme Court has made decisions that confirm the constitutionality of the Social Security Act.

You are, I believe, referring to the so-called "switch in time that saved nine." Here's a short description, pulled from Google :

The explanation is simplified for the sake of easy reading. The Supreme Court was actually divided. Before the Court-packing scheme, the Supremes usually voted 5-4 against the New Deal programs. Under the pressure of Roosevelt's threats, Justice Roberts is the one who changed the balance of the court. With his liberalized vote, the Court started voting 5-4 in favor of the New Deal programs, including Social Security. Justice Robert's conversion is called the "switch in time that saved nine."

A couple of facts:
Congress is free to increase or reduce the size of the Supreme Court any time it likes. In the 19th Century the Congress would reward Presidents it liked by increasing the size, thus allowing their favorite to make bonus appointments. Likewise, it would punish Presidents it didn't like by shrinking the court, depriving the executive of opportnuities to make appointments. Congress still has that right and could increase the size of SCOTUS to 15 tomorrow if it so chose, giving President Bush 6 vacancies to fill. I daresay that there are many on FR that would like it to exercise that option right now. So the threat of Roosevelt, who had won be a record landslide, to ask Congress to exercise that constitutional right may have exerted pressure on the justices, but it was entirely legitimate nonetheless.

Second, passing constitutional laws is the duty of both the Congress and the President. It is also their duty to seek the repeal of laws they believe unconstitutional. Those duties are implicit in their oaths of office. So if the Social Security Act is unconstitutional, every Congress and President since 1937 shares in the blame.

I am not debating whether the people or the states have retained rights outside of the Constitution. They clearly do.

But if I understand you, you don’t believe that one of those retained rights is the right to task the Federal Government in its capacity as their agent-employee-servant to do the people’s will, absent any prohibition.

But the Federal government is constrained by the constitution as to what rights, powers, regulation, etc. it can exercise.

Agreed (letting pass the matter of whether or not the Federal Government has rights.)

The Constitution outlines those specifically and for the United States government to exercise more than what is specifically in there requires another amendment that specifically states it...otherwise it is illegal by definition.

Meaning the Ninth and Tenth Amendments aren’t sufficient for authorization as I laid out. Nor would be an amendment that merely stated: “the right of the people to task the Federal Government to do their will in its capacity as their agent, employee and servant, shall not be infringed save by prohibition elsewhere in the Constitution.” Such an amendment would also have to say “and the Federal Government shall comply with such taskings when they are executable.” Or something like all that.

I tried to clarify and reiterate in my number 54. (From your number 55)

I understand there are limitations on the Federal Government and I understand that you believe an amendment is required. I believe that an amendment would be required for the Federal Government to act unilaterally beyond what’s delegated in the Constitution. But I am addressing the Federal Government acting at the will of the people, not unilaterally. And I am not convinced that all that is required is not already in place.

This looks like a matter of “if it is not permitted it is forbidden” versus “if it is not forbidden it is permitted.”

One view concentrates on restraining the Federal Government to keep it from imposing on the people’s freedom (which is a noble view.) The other view concentrates on the people’s freedom to have the government do what they want so far as possible (which view brings a certain level of discomfort.)

What you are writing about as a restraint on the government I am seeing as a restraint on the people.

But I need to think about all this some more.

(If it is worth anything to you, I had a lot of trouble with this post. I had several false starts which I could see leading to a dearth spiral of post and counter post without any enlightenment. I generally try to avoid that. So far I’ve been given food for thought even if my thoughts have not led to the same conclusions as the thoughts of others.)

Jefferson himself had major reservations about the constitutionality of the Louisiana Purchase.

And as I recall, he had reservations about a National Bank., though some of his contemporaries felt otherwise (It’s been awhile, am I correct here?). In spite of all that, we got the Louisiana Purchase and the National Bank within a few years of the adoption of the Constitution.

It seems that we’ve had trouble with this thing from the beginning. Maybe we need to step back once in a while and reflect that the wonder is not how badly we have done but how well. It’s a shame that there is not a better system, but there is not. Not in the whole world.

The government simply has to convince the people that the law will be working in their best interest, and bam! You’ve got a new (generally socialist) law on the books.

That’s one of the reasons my thoughts on this matter distress me. Instead of the people telling the government what they want it to do, the government (or demagogues inside or outside the government) tells the people what the people want the government to do. And the checks and balances have eroded. Among other things:

- The Senate (as representatives of the States) no longer acts as a check on the House (as representatives of the people) because the Senators now are elected by and therefor also represent the people.

- The politicians take up Government as a career rather than being farmers or businessmen or professionals with a career outside Government, and their power and influence become entrenched. (One of the things that worried me about Clinton even before we knew what we know now, is that he seemed to have wanted to be the “man in power” his whole adult life. That doesn’t appear to be the case with Bush and that’s one of the things I like about him.)

- The Party system as it has become (maybe as it always was) encourages those elected at the State level to defer to those at the National level or to the Party leaders instead of doing what’s right for their State or the people of their State, because those at the State level need the others support to get elected and stay in office.

- And I’m not so sure on all this, but I think in the beginning the standard for being a voter was higher than it is now. (I am not saying anyone should be denied the vote because of race or gender.)

It is no lie that the Supreme Court has made decisions that confirm the constitutionality of the Social Security Act.

That is a lie. The truth is, the Supreme Court has made decisions that usurp the constitution, or that support usurpation by other branches. Rulings that allow the congress to do anything it pleases in the name of "general welfare" is just one example of those usurpations.

You are correct. The collusion that consolidated all power in Washington has rendered the Constitution a worthless piece of paper, except when touted in exhibits of pretend-patriotism in routine campaign speeches.

BTW, modern day revisionist history is much too kind to FDR, including his court-packing scheme. If you want a closer representation of the truth about FDR (and his extreme left-wing wife, Eleanor), you need to look much further back. Try "The Roosevelt Myth", by John T. Flynn, c1948.

I didn't say that about Clause 18. My point is that Clause 1 doesn't grant Congress the power to provide for the common defense and general welfare; it says that Congress has the power to levy taxes to provide for CD & GW - that is, to levy taxes in order to provide for CD & GW. As phrased, that is a limitation on the power of taxation. It's basically saying that Congress can levy taxes for revenue purposes only. The actual powers to make use of that money are granted elsewhere in the document, under specific clauses granting specific powers. And as others on this thread have pointed out, that's exactly how James Madison (and many others at the time) understood that language.

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