Outside view: What is the Constitution?

UPI ^ | August 17, 2002 | Sheldon Richman

[gcruse]

Outside view: What is the Constitution?

By Sheldon Richman
A UPI Outside view commentary

From the

Washington Politics & Policy

Desk

Published 8/17/2002 12:46 PM

FAIRFAX, Va., Aug. 13 (UPI) -- Supreme Court Justice Antonin Scalia is a smart man and an excellent writer. He is also a living example of how bad political and philosophical premises can put great talent in the service of a dangerous cause.

In November, while speaking at the University of Missouri, Scalia was asked what he thought about proposals to impose a national ID card on the American people. Scalia said he personally opposed the idea and would vote against it if it were put to a vote.

But when a student asked him whether a national ID would violate the Constitution's Fourth Amendment, which protects individuals "in their persons, houses, papers, and effects, against unreasonable searches and seizures," Scalia pointed out that the Amendment says nothing about an ID card.

He then went on to say "'If you think it's a bad idea to have an identity card, persuade your fellow citizens' through the amendment process, rather than asking courts to make policy."

Scalia here is saying that the government may require everyone to carry an ID unless the people amend the Constitution to prohibit Congress from enacting such a measure. He implies that the government can do virtually anything unless the Constitution expressly forbids it. No surprise here. Scalia has long made his views known.

But his views are based on an incorrect -- indeed, a pernicious -- notion of what the U.S. Constitution was and is supposed to be. In fact, he stands the Constitution on its head. Instead of a document that protects individual liberty by reining in government power, Scalia would make it one that protects government power by reining in individual liberty.

James Madison, one of the fathers of the Constitution, said that the central government was delegated powers that were "few and defined." This is backed up by the Constitution itself. Article I, Section 8 contains a short list powers given to the Congress.

To reinforce this point, the Tenth Amendment of the Bill of Rights, which was adopted at the urging of those who thought the Constitution would allow the government to grow too powerful, says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The upshot is that the national government was not given a general grant of power to do whatever it thinks is right. It was given specific powers and only those. Any others belong to the states or the people.

To put it more bluntly, if it is not expressly in the Constitution, the national government can't do it.

This is not only clear from the constitutional text; it is the only scheme consistent with the idea of a constitutional republic. A constitution such as ours is needed only if the intent is to limit the powers of government in behalf of liberty.

A "constitution" that limits liberty in behalf of government power is a contradiction.

The Founding Fathers wanted to safeguard individual freedom. So they made the task of amending the Constitution difficult. But Scalia's way of thinking, which first seized politicians and judges long ago, reverses the Founders' basic intention.

If government can do anything except that which is expressly prohibited by the Constitution, then the onerous burden of amending the Constitution, instead of falling on those who favor expanded power, is now on those who favor preserving freedom.

The Founders must be spinning in their graves.

Scalia's remark shows clearly how America's political system has been turned against liberty. It is thus a perfect illustration for a new book, Dependent on D.C., by Prof. Charlotte Twight of Boise State University (Palgrave/St. Martin's Press).

Twight argues that government leaders have inverted the American system to keep the people from knowing what the politicians are doing and to make it costly for the people to object. She calls it "manipulating the political transactions costs."

If we are to defend our liberties and get government under control again, it behooves all Americans to pay as much attention to what Twight has to say as they do to the comments of Justice Scalia.

-- Sheldon Richman is senior fellow at The Future of Freedom Foundation in Fairfax, Va., author of Tethered Citizens: Time to Repeal the Welfare State, and editor of Ideas on Liberty magazine.

-- "Outside View" commentaries are written for UPI by outside writers who specialize in a variety of important global issues.

Copyright © 2002 United Press International
 

[DeaconBenjamin]

As I recall, the states imposed additional qualifications for federal office in the years following the adoption of the Constitution. Are you stating that your understanding of the founders' intent is better than that of the founders?

[Mike4Freedom]

As I recall, the states imposed additional qualifications for federal office in the years following the adoption of the Constitution. Are you stating that your understanding of the founders' intent is better than that of the founders?

No, just reiterating some of the court decisions in the area. If the constitution states certain qualifications for Congress, the states cannot add to those qualifications with term limits, racial tests, gender tests, etc.

[DeaconBenjamin]

I see. You are merely expressing the current jurisprudential view of this issue. I thought you were speaking from historical fact, not contemporary, court-established fiction.

[Schmedlap]

I’m not sure where the author is in disagreement wth Scalia.

Here is what he wrote about the Constitution:
“James Madison, one of the fathers of the Constitution, said that the central government was delegated powers that were 'few and defined.' This is backed up by the Constitution itself. Article I, Section 8 contains a short list powers given to the Congress.

To reinforce this point, the Tenth Amendment of the Bill of Rights, which was adopted at the urging of those who thought the Constitution would allow the government to grow too powerful, says, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

The upshot is that the national government was not given a general grant of power to do whatever it thinks is right. It was given specific powers and only those. Any others belong to the states or the people.

To put it more bluntly, if it is not expressly in the Constitution, the national government can't do it.”

But, he writes this about Scalia:
“He implies that the government can do virtually anything unless the Constitution expressly forbids it.”

Isn’t that what the author just described? The government can do anything that the Constitution does not forbid - and the Constitution forbids a whole lot of stuff. I’m not sure where the author is in disagreement with Scalia. I don't see how his conclusion (that Scalia would make the Constitution a document that protects government power by reining in individual liberty) follows from his premises.

[4CJ]

I would consider a national ID to be a national census - instead of every 10 years provided for in Article I, Section 2, it would be a constant enumeration.

[Mike4Freedom]

The government can do anything that the Constitution does not forbid - and the Constitution forbids a whole lot of stuff

There seems to be some misunderstanding here. The constitution says clearly that there is a short list of things the Congress can legislate on and they may do nothing else. The original constitution had only the list and the writers (Federalists) thought that sufficient to bind the government. The Anti-Federalists demanded and got the 9th and 10th amendments to make that limitation absolutely clear.

Scalia's position is quite wrong. He appears to grant the Congress a general police power-precisely the opposite to what is written.

That contradiction is clear in the quotes you supplied.

[Schmedlap]

I wrote:

"The government can do anything that the Constitution does not forbid - and the Constitution forbids a whole lot of stuff."

You responded:

"There seems to be some misunderstanding here. The constitution says clearly that there is a short list of things the Congress can legislate on and they may do nothing else."

Where is our disagreement?

If the constitution does not grant the government a power, then the power is forbidden, by virtue of the 10th amendment. Is this incorrect?

Furthermore, the author characterizes Scalia's position by writing:

"Scalia pointed out that the Amendment says nothing about an ID card...He implies that the government can do virtually anything unless the Constitution expressly forbids it."

I would be curious to know if that is actually Scalia's position. The author provides only one quote from Scalia, which is weak evidence of the position that the author states, at best:

"If you think it's a bad idea to have an identity card, persuade your fellow citizens' through the amendment process, rather than asking courts to make policy." - Scalia

This seems to be a position against judicial activism, rather than a position favoring government usurping power.

Anyone know of a link in which Scalia espouses the view that the author attributes to him?

[Mike4Freedom]

Where is our disagreement?

The Scalia position quoted places the tenth amendment on its head. In fact it ignores it.

What I said is that anything not on the short list of Federal power is prohibited. This is clearly the intention of the founders. There is clear evidence of this throughout the Federalist and Anti-Federalist articles. There only fight was whether the Article 1, Section 8 listing was adequate or whether it needed to be said again in the Tenth Amendment.

What Scalia is quoted as saying is that the power of Congress is general unless there is a specific prohibition. These two formulations are much different. The second creates a much longer list of powers for Congress.

At one time, my formulation was accepted without question. Even as late as the early 20th century, it was understood that alcohol prohibition could not be a Federal law without an amendment specifically granting the power.

The nation seems to have lost its bearing and its freedom during the Reign of FDR. I lay the key development at the 1937 court packing incident but it was growing all through the depression era. Now the court sees it the way Scalia does for the most part.

The 1995 decision, Lopez, was the first and only one that temporarily reasserted the original view. For that we have Clarence Thomas to thank. He needs to get bold enough to assert that same thinking again sometime.

I understand that he is personally torn between this original intent and the 60 year line of precedents ignoring it. The key phrase in the Lopez decision was "Let us return to first principles".

[Schmedlap]

You wrote:

"The Scalia position quoted places the tenth amendment on its head. In fact it ignores it."

To which quote do you refer? Unless I missed it, the only statement that was quoted from Scalia is the following:

"If you think it's a bad idea to have an identity card, persuade your fellow citizens' through the amendment process, rather than asking courts to make policy." - Scalia

You wrote:

"What Scalia is quoted as saying is that the power of Congress is general unless there is a specific prohibition."

I read where the author paraphrased such a position and attributed it to Scalia. Is this what you are relying upon?

The reason that I ask is that the author seems to be working way too hard to criticize Scalia. He only quotes one sentence from Scalia, briefly paraphrases two other statements, and then makes this the basis of the whole article attacking him.

[markfiveFF]

The Constitution says nothing about abortion. Indeed, until Roe v. Wade, the several states had jurisdiction over what constitutes human life.

[Jack Black]

The Constitution is a quaint anachronism, like the 13 star flag. It long ago ceased to have any effect on our polity. In 1913 the income tax was passed, Constitutional norms were adherred to. Yet at the same time the Federal Reserve Bank was put into place dispite Constitutional prohibitions on it. FDR made clear his impatience with this anachornism and ignored it for the most part. His standing army is with us to this day, and when not busy fighting foreign foes is occassionally called up to deal with domestic ones, like those religious fanatics in Texas a few years ago. While the ammendment process was used to make booze illegal it was ignored when a new hemp and opium prohibition was ushered in. Now the FedGov controls every aspect of life (down to the size of toilet tanks) and apparently all this is permitted via the "interstate commerce clause" or "the leaving breathing Constitution" interpretation or by the simple expediant of putting leftist traitors and idiots like Ruth Bader Ginsberg on the Supreme Court.

Face it, the time to whine about "unconstitionality" of the huge superstructure of law, force and control that is our government was a long time ago. To do so now is an interesting parlor game buy ain't gonna change a damn thing.

[dcwusmc]

bump

[gcruse]

Gotta wonder what life would be like it the Tenth Amendment had been ratified (/sarcasm).

[Celtman]

Just call me Don Quixote.  I like parlor games, anyway.

[Jack Black]

Just a lesson that lying is not a good idea. No one believes anything you say after that

What about Santa Claus and the Easter Bunny? After much reflection I have decided that I think both myths are destructive. To confuse small children about something as mysterious as God and crush their little hearts at age 9 or 10 with the certainty that the "invisible" things they believed in are fake. Well it's obvious where that leads. I always told my children "Santa Claus is make-believe, like Cinderella"

[Critter]

I vote for massive non participation. If we just ignore the imbeciles, they'll have to go away.

[Critter]

You can't pick and choose the limitations you want to keep. It don't work that way. If you have a pet constitutional violation, then you have to allow someone else, their pet violation, and pretty soon, everyone is guilty of some wrong doing, like we have now.

It's all or none. There is no middle ground as we can plainly see, here and now.

[B4Ranch]

I don't have a pet one, I just want all of them followed properly and equally.

[Critter]

I misunderstood your meaning then. I thought you meant you could live with legal pot, but not with legal narcotics. The feds have no authority to regulate any of them.

[B4Ranch]

"If we just ignore the imbeciles, they'll have to go away."

I finally found this old saying.

Ignore your rights and they'll go away. (too) We are living in sad times, aren't we? One of my favorite examples is;
"The U.N. Convention to Combat Desertification was ratified by the U.S. Senate on October 18, but few Senators yet know that it has been ratified. Senator Craig Thomas (R-WY) introduced a package of 34 treaties, all of which were ratified by a show of hands -- no recorded vote.

President Bush and Senator Craig come from the same school that's for sure.

I wonder just what in the hell we're going to have to do to get these socialism supporting globalists out of our government.

Have another Tea Party? Ouch!