“…you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal…”
–From the song “Gasoline“, by Sheryl Crow
The reason this is coming up today is because I’ve been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.
To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it’s to be done at all, it’s something that should be left to the States. (The 10th Amendment is used to reinforce this point.)
A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no “foreign entanglements” or National Banks…a time when men of the soil worked their farms with no fear of Debt or The Taxman….a time when government worked best by using local wisdom to deal with local problems.
In other words, we’re basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don’t recall, Hamilton won, which reflects the reality that we don’t all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.
To reinforce their arguments “fundamentalists” fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today’s problems would be found by simply allowing the Original Intent to shine through.
I’m here to tell you that couldn’t be more wrong-and to prove my point you need only consider the Civil War.
Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.
Those Founders who supported ending that “peculiar institution” were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by “the various States” there were compromises made, including the 3/5ths Compromise and Article Four’s requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.
The Intent Of The Founders, on the question of slavery, was to let time work it out.
The same kind of “let time work it out” thinking led us to Article 1, Section 8, and the “general welfare” clause.
Congress is empowered to enact legislation that provides for the “common defense and general welfare of the United States”…but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, “unclear phrasing”).
Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders’ Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.
We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to “accept” Federal laws…or not.
Over time, of course, we’ve come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would “find their center”.
The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we’ve seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.
Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?
The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn’t really exist as an issue in 1789.
I’m guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that “general welfare” clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.
The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government’s powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.
Can you guess why?
That’s right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of “leave things open” and let time work it out.
Here’s an example of how one of the Founders tried to tried to kill the “Original Intent” argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he’s also credited with being the principal author of the document, possibly because his were the best notes).
Why did he do that? It appears to be because that Founder’s Intent was to make the Constitution’s words stand on their own, without his notes to frame
the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.
The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you’ll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.
It is true that the Constitution, as it was written in 1789, does not contain the words “you may establish Social Security”-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.
Congress, acting with the authority to provide for the general welfare, took Roosevelt’s proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here’s part of what they had to say:
Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.
So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.
Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it’s to kick a problem down the road so that something can get done today.
The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn’t change that even one little bit.
FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.
…”the more you know”:
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p>Nope. The “intent of the founders” as to slavery was to allow it to continue, and indeed, to require as a constitutional matter the assistance even of non-slave states in the pursuit of runaway slaves (via the fugitive slave clause). That’s not a “let’s let things sort themselves out” solution.” That’s a “we’ve thought about it, and we’re going with slavery” solution. It was a terrible solution – it was deeply immoral, and it led to civil war – but it’s the solution they adopted.
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p>And as for this:
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p>Yeah … but the slavery problem was solved by (1) fighting a bloody civil war, and (2) amending the Constitution three times (nos. 13, 14, and 15). Neither a war nor a constitutional amendment is necessary with respect to Social Security.
You’re correct that the language of the document is largely supportive of slavery. However, many of the framers thought they could get away with it for the sake of union because they assumed that slavery as a practical matter would not be around for long. Then Eli Whitney had to go and invent the cotton gin and we know how that worked out.
…at the same time, and, obviously, we see the question in the same way.
…is to point out that those who went along with the slavery bargain probably did so on the assumption that it was going away eventually.
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p>the fight to end slavery was already well joined in england by the 1780s (see also: somerset’s case of 1772) and it wouldn’t have been unreasonable to think that, given a decade or two, it would end in the usa as well.
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p>if the only way they were going to get a constitution at all was to punt on this issue by giving the south what it demanded, that might be a deal worth making, especially when you consider that absent any way for congress to compel the rule of federal law upon the states, slavery would continue in the southern states more or less forever, unless it collapsed from an internal rebellion or something similar.
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p>that’s a balancing act that puts a federal government with the ability to make and enforce law, and the ability to tax and compel tax collections, that can impose law whether certain states like it or not and enforce that law with its own marshals…even as it was “a covenant with death and an agreement with Hell”…against a situation with the collapse of the confederation in the recent “rear view mirror” and no other better option going forward…i would have probably made the agreement with hell.
it was a very foolish one. Of course, hindsight is 20/20. But even without the benefit of hindsight, it seems perfectly obvious that if – as you say
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p>- then why would any sane person assume that the south would simply roll over 10 or 20 years down the road? If that’s what they thought, they were uncommonly silly people. And I don’t think they were silly people – to the contrary, I think some of them were extremely astute observers of human nature. Therefore, I think that they knew exactly what they were doing, and that it was more important to them to get a deal than to get rid of slavery. I don’t know that they anticipated a civil war, but they surely could not reasonably have believed that African-Americans would be free within any foreseeable timeframe.
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p>In other words, they simply did not care all that much about slavery. Sad, but true.
…that the very fact that there was a great big fight over slavery at all at the constitutional convention demonstrates that some number of those folks cared passionately about the issue–but i would also suggest that they desire to ‘get the deal done” did override the concern about how abolition would occur; as i noted in the story, it’s not uncommon for a legislature to “punt” on one issue today to get something else done, which is why…despite decades of warning…we have mo energy policy and no manufacturing policy and no solution to the medicare funding crisis and no climate change policy.
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p>There we go. đŸ™‚
I hear this from time to time as well. It reflects a total misunderstanding of what a Constitution is for. There is nothing, for example, that allows Congress to establish a Labor Department, an Environmental Protection Agency, or a Food and Drug Administration. However, these agencies are a vital part of Congress’ mission of regulating interstate commerce, and the necessary and proper clause means that they do not need to be worded precisely to be created.
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All American political problems can be traced back to the Hamilton-Jefferson disagreement. Hamilton thought people were too dangerous to be trusted with political power and the government must be strong enough to be effective. Jefferson trusted the people without exception and thought government should be no more powerful than strictly interpreted by the Constitution.
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p>I would not say that Hamilton won, however. True, we got a Federalist Constitution. But after twelve years of Federalist rule, Jefferson’s Democratic-Republicans took over and gave us a record three consecutive two-term Presidents. It wasn’t until Andrew Jackson split the party that their party was weakened.
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I don’t think this is the case. I’ve heard lectures from Scalia where he openly states the Constitution is flawed. But he also points out that we have the power to change it. Until it is changed, he says, we should go with the “original language,” which is easily determined, and not the “original intent” which is impossible to know.
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I don’t think they were going to let time work it out. They allowed that the slave trade could be banned after 1808 (it was banned the first day possible). I think they realized there was no way to stop slavery if the South was unwilling to go along with it, other than a war, which they didn’t want. It was more important to be united than to be free, so they allowed slavery.
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p>The General Welfare Clause, rather than being a “time will tell” issue is simply a broadly worded plan to allow Congress authority to act without having to amend the Constitution every day. However, Madison himself wrote in Federalist #41,
So I would caution against reading the “common defense and general welfare” as a carte blanch for governmental programs. It should be noted that the very same phrase also occurred in the Articles of Confederation.
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I agree with you. One of the strengths of the US Constitution is that it is flexible to allow each generation to review the demands placed upon it. It is a balancing act to allow this flexibility without making the wording useless, though.
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That was how Hamilton felt. Thank God he was determined to be wrong on this point!
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Actually, I know some people who say this is actually what the Constitution intends for us to do. Giving states flexibility allows for “an experimentation of policy” and “allows citizens to vote with their feet” for what is best. I think this has some serious flaws (I have moved many times, but never for public policy reasons). But it is a serious idea of how government should work.
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Actually, both of these points are incorrect.
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p>Article III, Section 2 states:
So that says that the Supreme Court resolves these conflicts.
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p>Article VI states:
Jefferson argued against this (Kentucky and Virginia Resolutions) and John C. Calhoun was a champion of the principle of nullification and concurrent majorities. However, it is impossible to argue their positions and remain true to the idea that the Constitution means what it says and says what it means.
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I’d caution against mis-interpreting this. Many men of the time saved their letters and notes to be published after their death – Washington, Jefferson, Hamilton, Aaron Burr, even. Madison was probably considered the father of the Constitution because he worked so hard to build a consensus – it was a very narrow thing getting the Constitution approved and ratified. Madison took the floor at the Convention 150 times, with only Gouverneur Morris and James Wilson speaking more often, and served on many committees. Not only was he instrumental in delivering Virginia’s votes for ratification, but also worked with Hamilton to secure passage in New York.
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Those required Constitutional Amendments to fix.
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This is a strong argument. However, you are also pointing out that every current generation of Americans can reinvent/reinterpret portions of the Constitution. So be aware that your own arguments weakens this defense.
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p>I think that the strongest argument to support Social Security is that of the Interstate Commerce Clause. By providing financial support to individuals, the Congress promotes interstate co
mmerce for all of us. Think of how the economy would suffer if all of that money were to stop flowing to the retired.
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p>Beyond that, the reliance on the Tenth Amendment is weak when applied against Social Security. What federal power is used in the Social Security program? The power to tax. And the federal government absolutely has the power to tax. The dispersal of payments, for whatever purpose, is not a power of government – it is simply the dispersal of money that was gathered through legal taxation.
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p>Somehow opponents of Social Security – and healthcare for that matter – have to show that the government is somehow infringing on their rights. With Social Security, I don’t see it at all. With health care, the requirement for persons to spend their own money looks unconstitutional to me. Government can tax and provide services, but it cannot require that you go out and buy something. Even if Massachusetts does so, that doesn’t mean the federal government is empowered to do so.
You seem to be saying that the language of Article III clearly gave the power of judicial review, as we now understand it, to the federal courts.
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p>But that’s really not true – if it were, Marbury v. Madison would not have been nearly as controversial as it was at the time it was decided, and legal scholars would not have been arguing this very point for decades. Certainly, the “judicial Power” extends to constitutional cases, meaning that the Supreme Court may entertain such cases. But Article III says nothing about the Supreme Court having the final word on the Constitution’s meaning – particularly when it comes to disputes between the branches of the federal government. That’s how things have developed, but that was not explicitly laid out in the original document.
…and it saves me a bit of response, so…thanks.
…but in both cases there really isn’t any other logical conclusion.
on the Constitutional Convention, it’s clear that the issue of judicial review was discussed. Virginia, for example, explicitly banned the practice, and Madison proposed that it be banned at the federal level as well (under the principle of legislative superiority). Robert Yates, from New York, feared a tyranny of the judiciary if it were allowed. They favored limiting the power of the Supreme Court to judicial matters only – and were voted down.
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p>Hamilton argued in Federalist #78 “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
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p>Marbury is infamous for a number of reasons. First, it was a Federalist Court striking down a Federalist law. Second, it was declaring a basic Federalist principle – judicial review – in the face of a new President who was its most vocal critic – Jefferson. Third, of course, was that it decided a case against the President, then stated that the case was moot because the law was invalid. This meant that neither side could adequately argue against it without invalidating part of their own argument.
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p>This is a long-winded way of saying that the principle of judicial review was believed, by Federalists, to be implied but the Democratic-Republicans believed it was not.
but what you’re saying is that the issue was not clearly settled in the Constitution itself. That was my original point. đŸ™‚ (I’m well aware of what Hamilton said in Fed 78 – but Hamilton was arguing his position, not laying down the law.)
Well, that remains to be seen. So far, as we know, the federal courts to have considered that issue are in disagreement, and the Supremes have yet to weigh in.
…if i understand correctly, is that no one would have to buy health insurance when they have the option of paying the tax penalty instead; i assume the response will be some combination of 8th and 14th amendment arguments.
…just expressing the general joy i feel coming to a comment like this…or any of the others i’ve seen here…and i wish i could transport the entire redstate community over here just to see how it can be done.
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p>so…let’s start with jefferson and hamilton.
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p>my take on the different ways they saw government, for the purposes of this story, went more like this: jefferson saw the preferred vision of american government as a local one.
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p>jefferson seemed to prefer a weak federal government, and, if i understand correctly, he’d be more likely to want to concentrate power at the county level than either the state or federal level. jefferson’s attitude about “foreign entanglements” seems to echo that of the pauls today, rand and ron together. (i know, jefferson was also an internationalist…but the guy had a lot of contradictions in his character, the whole debt thing being another example.)
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p>hamilton, on the other hand, seemed to prefer a strong federal government and states in a subordinate position. it seems like hamilton was more publicly interested in promoting a foreign policy than jefferson (“commerce with all nations, alliances with none” if i recall correctly, was jefferson’s line, even as it is self-contradictory), and hamilton was involved with the first national bank, which clearly was not something jefferson wanted.
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p>based on the fact that we are today a country with a strong federal system, an active foreign policy (too active? perhaps, but that’s for another day…), and we’re one of the world leaders in merchantalism with a central bank “managing” the economy, i’d say hamilton did win and jefferson did lose–but i’d also say that as the “10th-ists” resurge in political power, hamilton is having to look over his shoulder, once again.
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p>i made a comment below about the slavery issue that suggests we actually see things the same way, except that i would wish that i had included david’s comment about the cotton gin as well.
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p>david also very nicely addressed the issues relating to marbury and, by extension, mcculloch and article III, so i won’t repeat that discussion here.
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p>so there is an issue of risk related to how we reinvent the constitution.
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p>here’s how i look at it: in the end, all power reverts to the people, so it is within our power to make changes that fit who we are and who we become.
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p>but at the same time, power brings responsibility, and we are charged with remaining true to our ideals.
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p>overarching all that is the issue of “inalienable rights”, which limits the scope of actions that government is ever allowed to embark upon, and that puts a limit upon what changes we can make to our constitution.
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p>a final point to address: the social security act, as i understand it, was in fact written to create separate titles for tax and distribution so that the 10th amendment issue could be bypassed in the courts, exactly as you suggest.
You state
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p>This phrase was used in the Declaration of Independence. It does not limit on our ability to amend the Constitution. The Declaration is a wonderful example of political rhetoric, but its not law.
…of the presence of natural law, which supersedes the will of governments and sovereigns, and it is from natural law that we grant some powers to government.
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p>the inalienable rights derive from natural law, and require no grant of government, nor do they need to be recorded in a book of law, which is why the constitution is a guidebook for government, and not the legal instrument that grants rights to the people (the first amendment doesn’t say that “the people shall have free speech”; instead, congress is prohibited from abridging the right of free speech through legislation).
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p>there was a considerable debate over whether there should or should not have been a bill of rights; those who were against the idea felt that it would limit the rights to those specifically enumerated in the document, and in fact the debate over things like a right to privacy in our own time touches on the same issues that the founders debated at the time the constitution was drafted.
Jefferson wanted lower governments to have authority – but he was from Virginia in the days of Patrick Henry and Benjamin Harrison V. Hamilton saw lower governments as pits of ambition and avarice – but he was from New York in the days of George Clinton and Aaron Burr. Where we stand, so often, is decided by where we stand.
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p>As far as Jefferson’s internationalism goes, it has to be said that he also purchased Louisiana from the French without so much as a thought about the Constitutional authority to do so. So I’m not sure he’s as much dead as you might think. He was incredibly flexible in his thinking.
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p>I’d urge you to read Hamilton’s writings – particularly Federalist #78, where he explains how the Supreme Court, as a representative of the people’s will to adhere to the Constitution, overrides the legislature as it evokes the people’s will to pass a law. Pure genius – the people’s will to principle saves them from the people’s will to details of law.