Don Davis

Founders Tell America: "You Figure It Out"

Filed By Don Davis | March 21, 2011 11:00 AM | comments

Filed in: Politics
Tags: 10th Amendment, Article 1 Section 8, Article 4 Section 3, Campaign for America's Future, Congress, Democrats, economic policy, election campaigns, Law, LGBT history, politics, Republicans, Social Security

In our efforts to form a more perfect union we look to the Constitution for guidance for how we might shape the form and function of government; nazi-pelosi.jpgmany who seek to interpret that document try to do so by following what they believe is The Original Intent of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing "liturgical foundation" to the adherents of the point of view that the Constitution is like the Bible: that it's somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent of The Founders, that summer in Philadelphia, was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent was that we work it out for ourselves as we go along?

" 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 slave-owning 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 Original 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' Original 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.

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 The Original Intent 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 Original Intent was to make the Constitution's words stand on their own, without his notes to frame the debate. 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 situation, 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. 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 The 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.

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If you read the Constitution in the context of the thinking of the time, as exemplified by Jefferson's Declaration, you understand that there is some validity to the idea of original intent, but that most adherents to that gospel have stood the theory on it’s head.
Remember the Founders understood it was impossible to enumerate individual rights and the government’s responsibilities. Recall Jefferson talking about “certain inalienable rights.” The key is what follows it, “that AMONG these are….” In other words, there was an acknowledgement that it would be a list impossible to enumerate. Here a few as an example, but it’s by no means the exhaustive list.
The original intent of the Constitution was to establish a Republic with a representative government and a system of check and balances amongst a three branch government, and establish limits on the reach of that government into personal lives. So one doesn’t go to the Constitution to see if a right exists for either individuals or governments (and this is often what Scalia tries to do), one goes to the Constitution to see if it provides a power to the government to infringe on a right.
The classic example often cited is the “finding of a right to privacy” which is the bedrock principle of the Roe v. Wade decision. I’m not even a lawyer, nor did I stay at a Holiday Inn last night, but it’s my understanding from my Junior High Civics class (likely taught by some over-paid, pinko, nut job, union member set on upending the fiscal viability of my home state [/snark]) that I get to assume I have a right to privacy…you don’t go see if it’s granted to me in the Constitution. One goes to the Constitution to determine if there is a governmental power to infringe on that right.
The same is true is cases like your Social Security example. One doesn’t go to the Constitution to see if the document says, “and forthwith and heretofore someday Americans may establish a system to aid the old and retired stave off starvation and homelessness.” One goes to the Constitution only to determine if there is a restriction on government authority to create such a system. Finding none, it would be within the power of the government to establish such a system.
I don’t see how it could be any simpler, but then if we took that approach, a lot of high priced attorneys wouldn’t have jobs, and most of the Fox punditry wouldn’t have any anti-progressive arguments left.

i would add one addendum to your thinking here:

the one area of law that makes life so rich and full for attorneys that you have missed here is the effort to resolve conflicts between competing claims of liberty interests.

right off the bat, do you have a right to gather petitions on private property? both sides have reasonable arguments, and both can claim constitutional logic is on their side, and that's why the supremes have had to weigh in on the issue.

another example is found in the history of mandating the pledge of allegiance in schools. pennsylvania and other states asserted during the 1930s that the state's "general welfare" interest in promoting national unity was superior to the interest of jehovah's witness children who felt mandatory pledging to the flag was an affront to god and a first amendment violation.

over the course of just a few years, the court first found for the state, then for the cause championed by the witnesses.

i have my own bias here, but in the '30s, with real live communism in the streets, thanks to the great depression, the state apparently felt the threat to "national unity" was real...and the big "take away" from all this is that even when the words seem clear you can still have a situation where there isn't much constitutional clarity.

i should have added this example: the em>plessy v ferguson decision in contrast to brown v board of education.

in plessy, of course, the court ruled that "separate but equal" accommodations were acceptable for the purpose of maintaining racial segregation, brown famously ruled that "separate but equal" was unacceptable.

The way things are going in a few thousand years conservative Americans will honor Washington, Jefferson, and Reagan like Biblical kings while insisting that everything in the Constitution is sacred word from the Great Emancipator.

"what was the religious purpose of the sphinx with the pince-nez specs?"

that will be the question archaeologists will be asking as the stare at the odd monument that was eventually erected to honor jefferson.

Ken Tracht | March 21, 2011 2:28 PM

The Constitution set a framework for our government and it allowed for changes, but before major changes are made an amendment is required. I know certain elites think they know better and should be allowed to impose their will even when the majority disagree such as Obamacare.

The General Welfare Clause is not an empowering clause but a further limitation. The enumerated powers can only be used in furtherance of the General Welfare, not to advance any special interest.

Read "A matter of interpretation : federal courts and the law : an essay" / by Antonin Scalia. It shows Scalia's true position not straw man Don Davis attacks.

if i understand you correctly, you're trying to say that the general welfare clause tells the federal government to do less that it would absent the clause, and we absolutely do not agree.

how you can see the general welfare clause as "further limiting" the actions of the federal government is completely beyond my understanding, so you're going to have to help me oput by fleshing out your argument a bit further; to add to that i'm not aware of any legal interpretation of article 1, section 8 from any source that would support your point of view.

Brad Bailey | March 21, 2011 4:46 PM

Actually, Bil, many conservatives and most libertarians despise Lincoln, crediting him with centralizing and empowering the federal government to its current bloated extent.

Lincoln committed gross constitutional violations by suspending habeas corpus. He jailed 300 newspaper editors who publicly disagreed with his policies.

There is nothing in the Constitution that empowers the federal government to tell anyone what they can or cannot do with their own bodies, i.e. drugs or doctor-assisted suicide.

And yet despite the 10th Amendment, the federal government has created a vast anti-drug beaurocracy that costs taxpayers 50 billion dollars a year and ruins the lives of hundreds of thousands of non-violent drug users. It uses the weak justification of the Interstate Commerce Clause as a pretext for its actions.

At the very least, states should be allowed to decide drug policy for themselves. And the Controlled Substances act should be repealed as a gross violation of the 10th Amendment and the constitutional principle of federalism.

Another line from Section 1, part 8:

"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."

In other words, the Constitution does not allow for a standing army. And yet we have a military-industrial complex that for decades has wasted trillions of taxpayer dollars in a never-ending war for American empire.

In these specific areas the federal government has become a two-ton moral and financial weight tied around the neck of every American citizen.

I'm going to assume that "many" conservatives isn't anywhere near even 2%, because we didn't hear too many cries of indignation from them when GWB suspended habeas corpus for "enemy combatants" and conservatives don't run on platforms of legalizing all drugs and conservatives certainly don't oppose the existence of the military industrial complex.

And Bil didn't mention Lincoln.

i could not have said it better (ron paul being the notable exception), except to add that if "ron paul" liberterians were to grab the levers of power, presumably we would not be having a same-sex marriage controversy...except we are, and ron paul's not exactly pushing very hard to help make it stop, is he?

i hate to say this, but i think you whiffed on this comment twice: the general welfare clause and the interstate commerce clause, like it or nor, do provide cover for those drug laws, just as they allow congress to pass laws regulating the purity of drugs or the conditions under which they are manufactured.

just to add to this line of thought...if it was legal today to manufacture and produce marijuana for the commercial market...are you here to tell us it wouldn't be a matter of interstate commerce?

(for the record, i'm no fan of those laws either, but that does seem to be the state of the law and a reasonable interpretation of the constitution, as we've been told on multiple occasions by the supreme court.)

now, on to the "standing army" issue.

if congress makes appropriations to a standing army, but the duration of those individual appropriations never extend beyond two years (in other words, they appropriate the money one year at a time), what's the problem?

Leigh Anne | March 22, 2011 1:25 PM

Well, Alex, there are conservatives and there are conservatives. And also neo-conservatives. And all of those people who are "conservative" because you disagree with them.

To some, limited government means that the government can't act like a tyrannical king whose word is law. To others, it means a Department of Defense and nothing else.

Blaming conservatives, instead of discussing ideas, often ends the debate without any dialogue. And we end up just tugging at opposite ends of the same rope.

you do well note that we do our best work debating ideas, but it's easy to see how frustrating it can be when an entire community seems to rise up as one to partake in something particularly odious, and "conservatives" seem to have been especially busy these past two years being amazingly odious.

sadly, that does sweep up a lot of perfectly nice conservative folk along the way, and it does become hard to be a reasonable conservative voice and still be noticed, and those reasonable voices often get overlooked--and i'm assuming you now have a window into how liberals have felt just about every day for the past 30 years as we've seen fool after fool push this federal government of ours--and many state government as well--off the deep end using conservative philosophies of various flavors.

Brad Bailey | March 22, 2011 2:02 PM

You're confusing conservatives with Republicans. And actually, Ron Paul runs on exactly that platform: legalizing marijuana and opposing the military-industrial complex and its interventionist foreign policy. He also opposes Guantanamo and wants to shut down the Federal Reserve. And there's a groundswell of support for him from younger voters.

in fairness, as we note from this link right here, what paul often supports is letting states make virtually all decisions of government, no matter the outcome.

or to put it another way, ron paul is really a bigger fan of the articles of confederation than the constitution.

and that's the big knock on paul: neither he or rand have any problem with states engaging in bizarre legal practices, including legalizing racial discrimination if it's anyone other than the government doing it, as long as the bizarre practice emanates from a state government, and not the federal government.

a good example is found in the same-sex marriage debate: paul does not support repealing the federal doma, despite the obvious discriminatory effects and the "violence" it does to his own views regarding the 10th amendment and states' rights, but he's happy to let states pass any law they wish on the matter, no matter the effect on the resident of that state or the mandate under the federal constitution to protect the rights of minorities from the tyrrany of the majority.

Brad Bailey | March 22, 2011 2:38 PM

And if Bil didn't mention Lincoln, who was he referring to as the Great Emancipator? That's generally conceded to be Lincoln's monicker.

Brad Bailey | March 24, 2011 3:35 PM

The Feds don't use the Interstate Commerce Clause just to control legal drug purity. They use it to justify virtually EVERYTHING that goes on in this country: the Controlled Substances Act, the DEA and a dozen more anti-drug federal departments, all the state and local drug SWAT teams, the prison-industrial complex, et al.

It's a 50 billion dollar a year beaurocracy that's paid for with our tax dollars.

A "reasonable interpretation of the constitution?" I don't think so. What happened to "life, liberty and the pursuit of happiness?"

The U.S. has one-tenth of the world's population but 25% of the world's prison population, half of whom are non-violent drug offenders, all because of the unconstituional Controlled Substances Act and its spawn, the DEA.

And yes, I definitely feel that states should be able to set their own drug policies, including their own purity laws. They should be allowed the same control over marijuana that they currently have over alcohol and tobacco.

And the Founding Fathers frowned upon becoming entangled in foreign affairs. Foreign trade? Yes. Foreign intervention? Definitely not. They knew the dangers of foreign empire from England's example, and didn't want to follow that lead.

That's why they didn't want a standing army.

The military-industrial complex is immoral, unconstitutional and the biggest waste of national treasure and American lives since WWII.

so right off the bat, there is indeed a tremendous tension between article 1, section 8 and the 10th amendment, and we have forever been fighting the battle over whether the feds have gone too far or not.

but that said, the drug trade is in fact interstate commerce, and that does give the congress the legal authority to regulate the drug trade.

to take it further, it's also international commerce, and the usa is a signatory to a un treaty dealing with "illicit narcotics", and the constitution clearly places in the hands of the federal government the power to deal with foreign affairs.

today's federal drug laws might be bad policy (and i would suggest they are), but they do seem to rest on a firm constitutional foundation, whether we like it or not.

the best constitutional argument available might be that drug laws infringe on the right to privacy (and privacy has been held to be a "fundamental right", in roe v wade), but the government is going to argue that the problems of crime associated with drug use and the health issues related to addiction represent compelling interests that justify government regulation, despite that privacy right...and a reasonable person might side with the government's arguments, which, i assume, is why you haven't seen a successful privacy challenge to federal drug laws.

same with the "military/industrial complex" (and the more recent "prison/industrial complex"): the constitution does indeed permit a standing army, as long as the appropriations don't last past two years at a time--and we do allow industry.

again, a situation where we have terrible public policy with a solid constitutional foundation.

finally, a word or two about entanglements:

without our alliance with the french, we would have never won the revolutionary war.

" the shores of tripoli...", that line from the marine hymn, refers to a series of battles with the barbary pirates for 15 years at the turn of the 19th century--and the reason we were fighting them was because they were messing up our efforts to get some "foreign entanglements" going in north africa...because allies make better trade deals than acquaintances.

by the way...we were also making "foreign entanglements" with the countries that were hiring those same pirates, as early as 1787, and let's see if you can guess who represented the united states as signatories to the treaty with morocco?

it was...wait for it...thomas jefferson and john adams.

you'll recall that jefferson purchased the louisiana territory on his own authority from france, with no "advice or consent" even sought, suggesting that he was willing to personally engage in "foreign entanglements" if it suited his whim and fit his definition of the national good.

finally, a word on "life, liberty, and the pursuit of happiness": what happened to it, i'm afraid, is that the phrase never made it from the declaration of independence to the constitution, and from then on it got caught up in the fight over enumerated vs. non-enumerated rights that was fought out at the constitutional convention and into the first decades of our history.