Wednesday, April 4, 2012

We Told You So: The Constitution’s Dissenters Tried to Warn Us

The Founding Fathers’ Guide to the Constitution, by Brion McClanahan

http://www.amazon.com/Founding-Fathers-Guide-Constitution-ebook/dp/B006MHGTNW

As I mentioned in my introduction to this book, my view on the Constitution is greatly reflected by the following quote from Lysander Spooner:

It is a general principle of law and reason, that a written instrument binds no one until he has signed it. This principle is so inflexible a one, that even though a man is unable to write his name, he must still "make his mark," before he is bound by a written contract.

If I didn’t sign it, how am I bound by it?

The author suggests that the best way to interpret the intent behind the Constitution is to understand the positions taken by the supporters of the document during the Convention and subsequent debates and discussions. It seems a good approach to take, and the author covers the ground thoroughly. In doing so, he demonstrates that much of what passes today as “Constitutional” is the opposite of the positions taken by many proponents of the document at the time of its ratification. In other words, the author demonstrates that intent behind the Constitution was to create a very limited general government, with specific and enumerate dauthority.

I don’t have a great interest in the debate regarding the Constitution in order to become a better defender of the document. I have little interest in the arguments of the supporters. The positions of the supporters have resulted in a failed document – failed if the objective was a bound, limited government.

I must again refer to Spooner:

But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

Some of the founders were quite wary of the Constitution, and foresaw the evolution in government that many today bemoan. These dissenters were quite accurate in their predictions and concerns.

For to say that a bad government must be established for fear of anarchy, is in reality, saying that we must kill ourselves for fear of dying.

John Williams of New York, 1788

It is the position of the dissenters as covered in McClanahan’s book that I wish to explore.

The States Will Become Irrelevant

One cannot explore this subject without including Patrick Henry:

…Who authorized them to speak in the language of We, the people, instead of We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated national government of the people of all the states.

Robert Whitehill of Pennsylvania echoed this sentiment:

We the People of the United States is a sentence that evidently shows the old foundation of the Union is destroyed, the principle of confederation excluded, and a new system of consolidated empire is set upon the ruins of the present compact between the states.

While the Constitution included language recognizing a role of the states in the check and balance of federal power (it would certainly not have been ratified otherwise), this role has been eroded over time, and is now virtually non-existent. One need look no further than 1865, when the states were taught that leaving the confederation was punishable by death and utter destruction. One can also look to the individual income tax as another erosion, and certainly the 17th amendment was another nail in this coffin.

What these gentlemen saw at the time of the debates was the direction that this Union would inevitably take. On this they could not have been more correct. Today, while there are some differences in the relationship between the government and the individual on a state by state basis, the overwhelming impact of the federal government on the individual – and in fact on each individual through the state governments – renders the state impacts rather minor in comparison.

A great opportunity for freedom comes when government must compete for its citizens. This can be no greater than when these competing states share a language, a heritage, much of the culture. Such shared background affords the individual an ease to move from one state to another. Eliminate the differences from state to state, and the individual is left with far fewer possibilities to escape tyranny.

These dissidents saw this risk and raised the concern. As will be shown, there were many at the time of these debates that raised other such concerns. It should be clear that, in each case, their worst fears have been realized.

Be Prepared for Congress to Abuse the Purse

There were concerns raised regarding Article I, Section 6, Clause 1: compensation for Senators and Representatives. Some felt that this would lead to an open-ended salary and receiving of other benefits. Again, starting with Patrick Henry:

The pay of Members is, by the Constitution, to be fixed by themselves, without limitation or restraint. They may therefore indulge themselves in the fullest extent.

In the first Congress, salaries were set at $5 per diem, per the author approximately $125 in 2010 dollars.

Even if congressmen claimed to be working every day of the week (earning them $46, 625) their salaries would be lower by more than $100,000 from current pay rates…. [If members of the founding generation were] alive to see how lavishly congressmen reward themselves today, they would surely be appalled.

This reward is not only in pay. Consider the perks. Salaried staff paid for from the general funds, trips domestic and overseas, millions made based on favors granted. While many members of Congress are millionaires (and for some, after a career solely in politics), the issue is not just the wealth legally owned by the politician. For all practical purposes, wealth by control and use is indistinguishable from wealth legally owned.

The General Welfare Clause Will Know No Bounds

Apparently there was little debate about this clause because the meaning was quite clear to the Founders. It was lifted from and directly tied to language in the Articles of Confederation.

It was clear to those who signed the Articles and served in the first Congresses of the United States that the “general welfare” meant legislation that benefitted each State and defended the liberties, “religion, sovereignty, [and] trade” of the several States.

Even with this apparent understanding, more than one person spoke out with concern. “Timoleon” of New York opined that “the general welfare is as unlimited as actions and things are that may disturbed or benefit that general welfare. William Symes Jr. argued that the “term ‘general welfare’ might be applied to any expenditure whatever.”

In March, 2010, Representative John Conyers of Michigan said, because of the “good and welfare clause” of the Constitution, President Obama’s healthcare legislation was Constitutional. It seems even in an area where the meaning was clear to most of the founders, the cynics were correct.

Consider the meaning of the term “welfare.” When applied to government’s role in society, welfare is defined as financial or other assistance to an individual or family from a city, state, or national government. In the time of the Constitution, the meaning was quite different, as quoted from Samuel Johnson’s 1755 Dictionary of the English Language: Happiness; success; prosperity.

The dissenters were right to be concerned. Given the power to be granted to the central government, the definition of the term welfare would increasingly be twisted and made elastic until every possible legislation could be seen as providing for the general welfare.

Congress’s Ability to Tax Will Be Limitless…

It was assumed by most opponents that Congress would abuse its authority to “lay and collect Taxes,” and would ultimately suffocate the States’ ability to do the same.

According to Richard Henry Lee (the “Federal Farmer”), “…as to internal taxes, the state governments will have concurrent powers with the general government, and both may tax the same objects in the same year….” And Abraham White said, “In giving up this power, we give up everything….”

“Brutus” wrote the most extensive opposition:

We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States….it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country.

More than 200 hundred years ago, Brutus wrote this passage, which is a very accurate description of the situation in the United States today.

It is interesting to note that supporters of this power to tax saw that it would be self-limiting, and necessary only in times of war. Is it any wonder that war is continual, and war describes virtually every government program: drugs and poverty being only two examples (needless to add, the never-to-be-ended war on terror)?

…and Despite the Ability to Tax, Congress Will Also Borrow Without Limit

Article I, Section 8 authorizes Congress to borrow money. Again, “Brutus” offers a detailed critique: “By this means [to borrow], they may create a national debt, so large, as to exceed the ability of the country ever to sink. I can scarcely contemplate a greater calamity….”

Sadly, we in this generation do not have to merely “contemplate” this reality; we will live it and pay the cost in our lifetimes.

Didn’t We Just Throw Out the Last Standing Army? You Will Have Another

Article I, Section 8, Clauses 11-16 outline the authorizations for war powers. There were concerns about the likelihood these would lead to, among other things, standing armies in the United States. These concerns were based on clauses such as:

- To raise and support Armies

- To provide and maintain a Navy

- To provide for calling forth the Militia

- To provide for organizing, arming, and disciplining the Militia

Richard Henry Lee and Elbridge Gerry both saw danger in these clauses. For Lee, a standing army “constantly terminated in the destruction of liberty.” Gerry called a standing army “dangerous to liberty.” “A Democratic Federalist” wrote, “Had we a standing army when the British invaded our peaceful shores? Was it a standing army that gained the battle of Lexington and Bunker’s Hill…?”

Brutus, again, provides the most biting critique:

It is admitted then, that a standing army in time of peace, is an evil. I ask then, why should this government be authorized to do evil? ...no reason can be given, why rulers should be authorized to do, what, if done, would oppose the principle and habits of the people…

Sadly, even Brutus did not seem to contemplate that perpetual war in many forms would “solve” this problem for the central government. No more need to complain about the possibility of a standing army in times of peace, if war is continuous and ever-present.

As an interesting aside, as part of this debate there was discussion about the use of central government force against the states:

Madison objected to a clause that would have allowed the central government to use force against a “delinquent state.” …Madison made it clear, and was seconded by Elbridge Gerry, that a State could not be coerced by the general government; most of the Framers agreed.

Luther Martin saw that this risk was likely, despite Madison’s and Gerry’s view. Before the Maryland legislature, he opined that the general government would resort to force should a State refuse to cooperate.

Of course, mentioning the events of 1861 should not be necessary.

Necessary and Proper…. If the General Welfare Clause Doesn’t Kill You, This Will do the Trick

Opponents argued, and often rightly so, that the [Necessary and Proper] clause would be used to expand the powers of the general government beyond those enumerated or delegated in Article I, Section 8. Alexander Hamilton did just that in 1791 by defending the incorporation of a central banking system.

John Marshall followed up in 1819 by defending Hamilton’s so-called “loose construction” theory in the McCullough v. Maryland decision. To paraphrase, Marshall argued that as long as the ends justified the means, and the law was within the letter and the spirit of the Constitution, the general government could do virtually anything it pleased….but such language was rejected during the debates leading to the ratification in 1787 and 1788.

Supporters today of a strict constructionist view of the Constitution point to the Marshall court as the source of many decisions that turned governance of the United States in a wrong direction. Certainly, decisions by this court have been used to expand power in the general government. However, if critics of Marshall are correct, then Spooner is correct – for a court to take such positions while many of the founders were still alive and in positions of power and authority indicates that the Constitution failed one way or another.

Further, consider Jefferson’s role. Jefferson is fondly revered as the best liberal in the classical sense of that term. Yet, as President, he had opportunities to change the composition of the court, take certain positions to clarify the checks and balances – not just among the three branches of the general government, but the checks and balances provided by the State governments. He was no stranger to these issues. From “Jefferson as President: His Judicial Blunders”, consider the following:

http://mises.org/daily/4477

When Jefferson ran for president in 1800, he made it clear that he supported strict construction, original intent jurisprudence, federalism, and states' rights:

I do then, with sincere zeal, wish an inviolable preservation of our present federal Constitution, according to the true sense in which it was adopted by the States. … I am for preserving to the States the powers not yielded by them to the Union, and to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the General Government, and all those of that government to the executive branch.

Chief Justice John Marshall asserted in his Marbury decision that the federal courts had the final right to decide questions of disputed constitutionality and the authority to set aside federal laws which they thought contrary to the Constitution.

Jefferson argued that an alternative doctrine, concurrent review, was closer to the intentions of the framers and the ratifying conventions. According to Jefferson, each branch of the federal government, plus the state governments, had the right to interpret the Constitution for itself, and none had the right to bind the others by its decision.

Jefferson wrote most convincingly regarding the rights of individuals and States’ rights relative to the federal government. On these issues, no one of his generation exceeded Jefferson’s zeal for decentralized government. Yet, while in office, Jefferson took positions counter to his previously stated views, and often took actions counter to those one would have taken if the desire was truly for a decentralized system.

Jefferson had opportunities to counter the decisions and actions of the Marshall court, for example:

Jefferson …did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall's opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review.

Apparently, Jefferson’s appointments to the court were not of the caliber to counter Marshall.

With three strong Republican appointments, Jefferson could have reduced Marshall's majority to a bare 4–3 by 1807. With just one more solid appointment in 1811, Jefferson's hand-picked successor, Madison, could have ended the Marshall Court and begun a Jeffersonian Court with strict constructionist, states'-rights jurists in the majority.

Why did Jefferson make such weak appointments? It was not because there were no intellectually formidable jurists committed to states' rights and strict construction…. There is no doubt that Roane and Tucker were the intellectual and scholarly equals, and possibly superiors, of Marshall and that they would have challenged his centralizing and nationalistic opinions at every opportunity. If Jefferson had appointed these two men to the court and favored a true Republican, instead of Madison, to be his successor, it is very likely that the Marshall Court would have come to an end in 1811; and historians would now be writing about a Roane or a Tucker Court during the 1810s and 1820s.

Of course, any actions Jefferson might have taken would likely only have changed the speed of the train, doing little if anything to change the direction.

Returning to McClanahan….

As noted, the Necessary and Proper clause was viewed by dissenters as an opportunity for the scope of the general government to grow. George Mason, calling it the “general clause,” said that because of it, “the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers as far as they shall think proper.”

Elbridge Gerry added that the “rights of the Citizens were…rendered insecure…by the general power of the Legislature to make what laws they may please to call necessary and proper….”

Many others added to this voice of concern, among them “An Old Whig” and “Brutus.” However, defenders of the Constitution and this clause were quite clear that the intent was limited to only those enumerated powers granted to the general government within the Constitution.

Brutus was correct, when he said “…it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way.”

The President is Not a King, Yet…But Just You Wait

Many dissenters were concerned (rightly, it turned out) that the position of President would result in a Monarch equal or greater in power than any King before. Alexander Hamilton and James Wilson were the leading proponents for a single executive:

When James Wilson moved that the executive should “consist of a single person,” the Convention sat in silence, no doubt uncomfortable at the prospect of a monarchical executive.

The dissenters were many, including Edmund Randolph and George Mason. For example, Mason stated, “We are not indeed constituting British Government, but a more dangerous monarchy, an elective one….”

New York Governor George Clinton, writing as “Cato,” said

Compare your past opinions and sentiments with the present proposed establishment, and you will find that if you adopt it, that it will lead you to a system which you heretofore reprobated as odious.

Franklin was quite observant, and it seems he reflected at least some of the founders’ views – we will be able to trust Washington with this power, heaven help us thereafter:

The first man put at the helm will be a good one [George Washington]. Nobody knows what sort may come afterwards. The executive will be always increasing here, as elsewhere, till it ends in monarchy.

As an aside, it is interesting to note that even in the first presidential election, the elite pre-selected the winner for the voters!

You Realize, of Course, That You Have Just Handed Final Arbiter Status to the Federal Judiciary

Patrick Henry and George Mason took direct aim at the idea of a federal judiciary, with Henry calling it “impracticable, or, if reducible to practice, dangerous in the extreme,” and calling the State judiciary “the sole protection against a tyrannical execution of the laws.”

Mason argued that “their [the judiciary’s] effect and operation will be utterly to destroy the state governments; for they will be the judges how far their laws operate…. To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable.”

Brutus weighed in on this subject as well: “From these remarks it is easy to see, that in proportion as the general government acquires power and jurisdiction, by the liberal construction which the judges may give the Constitution, will those of the states lose its rights, until they become so trifling and unimportant, as to be not worth having.”

This Constitution Shall Reign Supreme

The “Supremacy Clause” is another clause open to wide and expansionistic interpretation, as many dissidents feared. Richard Henry Lee wrote in October 1787 that “wherever this constitution, or any part of it, shall be incompatible with ancient customs, right, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away….”

It was explained by the proponents that this clause was limited, that only laws made in pursuance of the Constitution would be “supreme.” This argument did not settle the matter for the dissidents. George Bryan wrote, regarding the phrase “pursuant to the constitution”, this was “no restriction to the authority of congress; for the foregoing sections give them unlimited legislation.”

Timothy Bloodworth of North Carolina declared that Article VI “appears to me to sweep off all the constitutions of the states…. It will produce an abolition of the state governments. Its sovereignty absolutely annihilates them.”

The arguments made by proponents of this clause, that it was applicable only to laws passed in pursuance of powers enumerated in the constitution, were later used as the foundation for the arguments of nullification or State interposition. Unfortunately, the worst interpretation of the clause has survived, and concurrently the hopes for nullification have rarely been realized.

It was apparent to many dissenters that the end result of this Constitution, sooner or later, would be an end of State governments – in actuality if not in form – as these would be overpowered by the domination of the central government. John Lansing of New York offers a sentiment typical of this concern: “Sir, if you do not give the state governments a power to protect themselves, if you leave them no other check upon Congress than the power of appointing senators, they will certainly be overcome….”

Don’t Blame Us, We Warned You

As mentioned earlier, this book is quite helpful if one is interested in a thorough overview of the debates surrounding various clauses in the Constitution, and by using these debates, gaining a better understanding of the intent of the document’s supporters.

I have chosen a different path here, primarily exploring the concerns of the dissenters, and demonstrating (hopefully), that in each case these concerns have become reality. The pain and anger brought by having the foresight to see these risks can be heard in the following quote from Patrick Henry, in 1788:

It is impiously irritating the avenging hand of Heaven, when a people, who are in the full enjoyment of freedom, launch out into the wide ocean of human affairs, and desert those maxims which alone can preserve liberty. Such maxims, humble as they are, are those only which can render a nation safe or formidable.

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