Archive for December 23rd, 2010

Ghosts of Constitutional Debates Past

I’ve been working my way (slowly) through the Library of America’s Debate on the Constitution, a two-volume set.  While the Federalist is a  – the – American political philosophy, it represents the thoughts of only three authors, and can’t possibly answer all of the concerns that people had about the Constitution at the time.  The entire debate is a much more complete document, all the more valuable because it preserves the dissenting opinions.  We do that in judicial cases because the reasoning itself may be important to future decisors.  It puts the defenses in context, perhaps anticipates future arguments.

One of the first arguments against the Constitution comes in a letter from “Centinel” (they had plenty of variant spellings back then), one Samuel Bryan, in a letter to the Independent Gazetteer, dated October 5, 1787, less than a month after the Convention adjourned.  While we consider the Constitution to be brilliant applied political philosophy designed to protect our God-given natural rights, the opponents were often concerned that it would prove to be a path to despotism, that is, that the Constitution itself contained the means to undermine liberty.  Since the Independent Gazetteer didn’t survive long enough to sign a deal with Righthaven, I’ll quote at length.

He is skeptical of John Adams’s claim that a balance of powers at the federal level is even achievable:

This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third.

One could reasonably argue that the executive, with the collaboration of the Court and the capitulation of the Congress, has been progressively acquiring legislative powers.

Bryan anticipates the misreading of the Progressives of Article I Section 8:

“the Congress are to have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense, and general welfare of the United States; but all duties, imposts and excises, shall be uniform throughout the United States.”  Now what can be more comprehensive than these words; … to grant… the absolute controul over the commerce of the United States….The Congress may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, and thereby seize upon every object of revenue.

He’s focusing on taxes, but the abuse of the general welfare clause is indisputable, and he anticipates the erasure of the proper reading of the Commerce Clause.

Bryan also predicts the hegemony of the courts, in particular, the hegemony of the federal courts over state courts, and of the erosion of state power at the hands of the federal government in general.

…it is more probable that the state judicatories would be wholly superceded; for in contests about jurisdiction, the federal court, as the most powerful, would every prevail.

To put the omnipotency of Congress over the state government and the judicatories out of all doubt, the 6th article ordains that, “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land…”

By these section, the all-prevailing power of taxation, and such extensive legislative and judicial powers are vested in the general government, as must in their operation, necessarily absorb the state legislatures and judicatories, and that such was in the contemplation of the framers of it…

Now to be fair, in order to reach these conclusions, he has to ignore other sections of the Constitution, distort the Framers’ clear intent, and claim that later rebuttals are in bad faith.  Congress is explicitly limited in the types of taxes it may levy.  The Commerce Clause is not as expansive as he reads it.  The General Welfare Clause is not blanket permission to enact any sort of law Congress wants to.   Some of them would later be explicitly rectified by the Bill of Rights.   Others would indeed be exploited by judges looking to change the system.  But for him, these failings he claims to have discovered are a bug; for the Progressives, they’re a feature.

While we consider Madison, Hamilton, and Jay to be the heroes of the piece,  that Centinel predicted so many of the distortions later introduced by the Progressives lends his arguments relevance.

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