Posted on 07/07/2011 4:14:58 AM PDT by Kaslin
"When the chief justice read me the oath," President Franklin D. Roosevelt said to a speechwriter, "and came to the words 'support the Constitution of the United States,' I felt like saying: 'Yes, but it's the Constitution as I understand it, flexible enough to meet any new problem of democracy -- not the kind of Constitution your court has raised up as a barrier to progress and democracy.'"
FDR's statement vividly illustrates the Big Divide between (most) Republicans and Democrats, free marketers and collectivists, Milton Friedman and Paul Krugman. It's the line separating those who believe in the power of individuals from those who believe in the power of government -- so long as they're the ones in power. It's the line that separates those who believe in the welfare state from those who not only believe that the federal government recklessly spends more than it takes in, but also spends it on things not permitted by the Constitution -- and the country is worse off for having done so.
This is the tea party message (to the consternation of Democrats and squishy Republicans): The Constitution means what it says and says what it means. All this Constitution talk produces the inevitable backlash. Joy Behar, the learned Constitutional scholar, asked, "Do you think this Constitution-loving is getting out of hand?"
A Los Angeles Times columnist and I sat on a panel to analyze President Barack Obama's last State of the Union speech. What, I asked, gives the President authority to place health care under the command and control of the federal government? She replied, that part of the Constitution that says to provide for the domestic tranquility.
She refers to a part of the preamble to the Constitution: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility ... establish this Constitution for the United States of America." Many members of this "living, breathing" Constitution school claim authority for things like ObamaCare resides in the "promote the general welfare" part of the preamble. Using the "domestic tranquility" part was a first.
The Father of the Constitution, James Madison, anticipated the preamble-gives-government-permission-to-do-all-sorts-of-things-for-which-it-lacks-authority argument. In 1794, Congress appropriated money for charitable purposes. An incensed Madison said, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."
Time Magazine's recent Constitution cover story asks: "Does It Still Matter?" Its answer? Well, yeah, it sort of does, but then again, you know, not so much. After all, the Founding Fathers could neither foresee computers nor Twitter nor predict that Rep. Anthony Weiner would use both to implode his career. So, really, in the modern day, what's the relevance of the old document crafted by well-to-do, slave-owning white males?
As the federal government got bigger over the next 200 years, and assumed responsibilities the Founding Fathers considered the job of individuals, families and communities -- or of the separate states -- Madison's position withered. It's now fighting for its life.
Soon, the 50 percent of voters who pay little or no taxes will march into the polling booth, many pulling levers, pushing buttons and punching chads to vote themselves a raise -- at somebody's else's expense. If the Supreme Court permits the ObamaCare mandate, anything goes.
Constitution-shredders point not to our bloated federal government, the entitlement mentality or to the desire of politicians on both sides to promise things that the Founders feared would eventually produce an electorate with little or no financial skin in the game. No, the real villain is the dastardly Bush tax cuts! If only they had not been enacted, they tell us!
Why not blame the tax cuts signed by other presidents? President John Kennedy's plan reduced the top marginal income tax rate from 91 percent to 70 percent. President Ronald Reagan reduced the top marginal tax rate from 70 to 28 percent. President George W. Bush, by contrast, reduced the top rate from 39.6 to 35 percent, making him Scrooge-like in comparison.
The Washington Post's "Fact Checker" says the two Bush tax cuts, in 2001 and 2003, "cost" $2.8 trillion over 10 years (an average of $280 billion per year). In the last two and a half years alone, Obama has presided over the addition of almost $4 trillion in new debt, and this year's deficit is an estimated $1.6 trillion.
Besides, liberals like the Bush tax cuts -- at least for the lower 98 percent of workers. Since most Democrats want to preserve the Bush-era tax rates for all but the top 2 percent, the objectionable "cost" of the cuts becomes even more inconsequential to dealing with budget, deficit and debt problems.
So now what? We drifted away from the Constitution in fits and starts. It is how we must return to it. Voters must remember who talked the talk and walked the walk. This is a time when we change course, when people rediscover American exceptionalism and the wisdom of the Constitution and say, "Enough."
If not, Greece awaits.
Huck writes as if Madison forced our Constitution on an unwilling country.
The fact is he was one of 55 delegates, three of whom were sitting governors, many had Revolutionary War experience and nearly all had held state political offices. Several were sitting members of the Confederate Congress.
To think Madison pushed them around is laughable.
Incorrect as usual. Madison used the great political skill for which he was known, and successfully shepharded his government-expanding project through to ratification. The state conventions ratified it, and deserve the consequences.
He was, by all accounts, a brilliant politician, even if he was a failure as president, and even though his Federalist Papers are laughably wrong on almost every count.
All one has to do is survey 200 -plus years of history to see that my statement is factual, and yours is ridiculous fantasy.
Much as I love and respect the wisdom of the Constitution and the power it invests in SCOTUS,there is a higher power.
Some people might describe the reality of that higher power as our God given rights.
No human beings have the right to oppress other human beings,regardless of any SCOTUS decisions. People might abide by those decisions because not to do so will enact severe penalty,still,obedience under duress in matters that oppress, violate.
All one has to do is survey our 200 plus year history to see that when “necessary and proper” is observed as written, like any other clause, we have law that advances an enumerated power that does not violate our Natural Rights.
Your “government itself is the judge . . . “ is circular illogic, your specialty. The Constitution provides for an Army and Navy. There is no mention of an Air Force. Is the existence of an Air Force illegal?
Circular, yes. It's also true. Who decides what is necessary and proper? The federal government. FACT.
Of course it's Constitutional. Unenumerated powers abound in the Constitution. The Constitution empowers Congress to " provide for the common Defence and general Welfare of the United States." That allows the government to enact any law it deems "necessary and proper" to carry that power into effect.
And guess what? The same goes for providing for the "general welfare." If the Congress finds a law is "necessary and proper" to "provide for the general welfare of the US", it enacts it. If the president doesn't veto it, it stands. If the SCOTUS does not overturn it, or even better if it affirms the law, it stands forever. And of course, that is anything but "few and defined powers." Thanks for making my case for me.
Madison was not the Pied Piper you wish him to be. He had no magical power to force other delegates to write the Constitution.
The Articles of Confederation had to be replaced. They were. Get over it.
You are without doubt the King of drive-by assaults on our beloved Constitution. You also regularly express a preference, if not admiration for the Confederacy. So let’s hear it. Tell FR why the Articles were superior. Give this forum a definitive essay. Huck’s opus magnus. Present your thoughts for critical review.
How about national parks? You like national parks? I've visited many of them. But where is the enumerated power?
Few and defined? lol! My sides hurt from laughing.
And of course he wasn't alone. The Federalists became the dominant party until their inevitable overreach. But Madison was a central figure--as everyone knows and no one disputes. He and Hamilton privately 'tutored' Washington on structural governmental issues, winning his crucial support for their centralizing, state-squashing cause. His ability as a compromiser made him a pivotal figure throughout the process. All of this is Madison 101. That you dispute it merely shows your ignorance.
Only you could contradict himself within a single sentence.
If the general welfare clause means what you say, why did the delegates fight over enumerated powers or include them at all?
The rest of your blather only supports my case made over a period of years at FR. A Constitution which is ignored, it's words twisted into unrecognizable meanings will be our bloody end. It is the fault of the men who committed these crimes, not those who wrote this wonderful document.
How did the Articles deal with laws necessary and proper?
Why won't you defend the Articles?
There's no if about it. "Provide for the common defense and general welfare". If providing for the common defense includes unenumerated powers deemed to support that power, then the same goes for "general welfare", as has been the case in practice.
As for why the framers dickered over enumerated powers, I don't know why they bothered. It doesn't really matter. There "intent", as even Scalia asserts, is totally irrelevant and impossible to know or generalize. All that matters is the text.
It's not as if it's a surprise that the general welfare clause and the necessary and proper clause create virtually unlimited power. It was pointed out at the time:
This constitution considers the people of the several states as one body corporate, and is intended as an original compact; it will therefore dissolve all contracts which may be inconsistent with it. This not only results from its nature, but is expressly declared in the 6th article of it. The design of the constitution is expressed in the preamble, to be, "in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and posterity." These are the ends this government is to accomplish, and for which it is invested with certain powers; among these is the power "to make all laws which are 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." It is a rule in construing a law to consider the objects the legislature had in view in passing it, and to give it such an explanation as to promote their intention. The same rule will apply in explaining a constitution. The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common welfare, and an express power being vested in the legislature to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the general government. The inference is natural that the legislature will have an authority to make all laws which they shall judge necessary for the common safety, and to promote the general welfare. This amounts to a power to make laws at discretion. No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose.Brutus #5, The New-York Journal of December 13, 1787
It's fun watching you beg and plead to get off the hook. The Articles are not the topic of conversation--The Constitution is.
That's your opinion, which means nothing. Back here in realville, they are constitutional. You just can't accept how the system works.
It's like this. Say there is a baseball game, and there is a play at the plate. The runner slides, the catcher grabs the throw and applies the tag, bang bang, dust flies up, and now the question is--safe or out.
The answer has nothing to do with whether or not the runner beat the catcher. The true answer is that whatever the umpire calls, is the call. If none of the umpires overturn the home plate ump, and he calls safe, then the runner is safe.
You could be sitting in the front row, and maybe you are certain the ump blew the call. You can yell and scream, but you have no power at all over the outcome. And the person next to you could swear you are wrong, and the ump got it right. Doesn't matter either way.
If the government says it's constitutional, it is. That's how dumb this system is. That's how it actually works. The branches have some powers over each other, with the SCOTUS having an awesome negative (and positive) power over the Congress and president, but that's it. It's all decided in house. Totally insane way of doing things.
So, back to national parks. National parks provide for thee general welfare of the US. Hell, they probably help insure domestic tranquility. NASA? Provides for the general welfare.
His latest book: Restoring the Lost Constitution.
Tell me about powers necessary and proper in the Articles.
I defend that which I admire, the Constitution almost every day at FR.
Why will you not defend that which you admire? Frightened?
Who goes on to complain...
"Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect; the attempt would have involved a complete digest of laws on every subject to which the Constitution relates."
I've never understood why this is a problem. People complain that they want the Constitution simple and concise. And yet the tax code, the departmental budgets, the regulations and vast reaches of the government can fill entire libraries and warehouses with papers, because they derive so many powers at the expense of brevity.
Because the federalists favored general, indefinite terms such as "general welfare" and "necessary and proper" in the Constitution, we get unlimited powers and a limited document.
I'd rather we had an unlimited document and limited power, but hey, that's just me. In short, I think Madison's argument is the argument someone in power makes to justify retaining power. To really limit it, he argues, would be too much of a hassle.
A Constitution that limits the government to expressly delegated--enumerated--powers only is in fact a digest of powers. If not, it is not a Constitution of "few and defined" powers. It is one of indefinite powers.
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