The Right’s Made-up ‘Constitution’

For Tea Partiers and libertarians, it is an article of faith that the Constitution tightly constrained the federal government and gave broad powers to the states. But that is bogus history — mere propaganda — and suggests that the Right’s rank-and-file has never read or understood the document, says historian Jada Thacker.

By Jada Thacker

The Cato Institute’s Handbook for Policy Makers says, “The American system was established to provide limited government.” The American Enterprise Institute states its purpose to “defend the principles” of “limited government.” The Heritage Foundation claims its mission is to promote “principles of … limited government.” A multitude of Tea Party associations follow suit.

At first glance the concept of “limited government” seems like a no-brainer. Everybody believes the power of government should be limited somehow. All those who think totalitarianism is a good idea raise your hand. But there is one problem with the ultra-conservatives’ “limited government” program: it is wrong. It is not just a little bit wrong, but demonstrably false.

Gouverneur Morris as painted by Edward Dalton Marchant.

The Constitution was never intended to “provide limited government,” and furthermore it did not do so. The U.S. government possessed the same constitutional power at the moment of its inception as it did yesterday afternoon.

This is not a matter of opinion, but of literacy. If we want to discover the truth about the scope of power granted to federal government by the Constitution, all we have to do is read what it says.

The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

As might be expected in a preamble to a founding document, especially one written under supervision of arch-aristocrat Gouverneur Morris, the terms are sweeping and rather grandiose. But the point is crystal clear: “to form a more perfect Union.” If the object of the Constitution were to establish “limited government,” its own Preamble must be considered a misstatement.

Enumerated Powers

Article I establishes Congress, and Section 8 enumerates its powers. The first clause of Article I, Section 8 repeats the sweeping rhetoric of the Preamble verbatim. While it provides for a measure of uniformity, it does not so much as hint at a limit on the federal government’s power to legislate as it sees fit:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States…”

No attempt is made here, or at any other place in the Constitution, to define “general Welfare.” This oversight (if that is what it was) is crucial. The ambiguous nature of the phrase “provide for the…general Welfare” leaves it open to widely divergent interpretations.

Making matters worse for federal government power-deniers is the wording of the last clause of Article I, the so-called “Elastic Clause”: Congress shall have power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Thus the type, breadth and scope of federal legislation became unchained. When viewed in light of the ambiguous authorization of the Article’s first clause, the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses – restated in the vernacular – flatly announce that “Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.”

Lately there has been an embarrassingly naïve call from the Tea Party to require Congress to specify in each of its bills the Constitutional authority upon which the bill is grounded. Nothing could be easier: the first and last clauses of Article I, Section 8 gives Congress black-and-white authority to make any law it so desires. Nor was this authority lost on the Founders.

“Limited government” advocates are fond of cherry-picking quotes from The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the Anti-federalist Papers unsurprisingly never gets a glance. Here is a sample from New Yorker Robert Yates, a would-be founder who walked out of the Philadelphia convention in protest, written a month after the Constitution had been completed:

“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. … The government then, so far as it extends, is a complete one. … It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”

Yates, it must be emphasized, took pains to identify the “necessary and proper” clause as the root of the “absolute power” inherent in the Constitution well over a year before ratification.

The Tenth Amendment

A particular darling of secession-prone, far-Right Texas Gov. Rick Perry, the Tenth Amendment is often claimed as the silver-bullet antidote for the powers unleashed by the “general welfare” and “elastic clauses.” Here is the text of the Amendment in its entirety: “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.”

Superficially, the Tenth seems to mean “since certain powers are not delegated to the federal government, then those powers are reserved to the states or the people.” This would seem to be good news for champions of limited government. But this is not the case.

The Tenth does not say that important powers remain to be delegated to the United States. It merely says that powers “not [yet] delegated” are “reserved” to the states or the people. This sounds like a terrific idea – until we realize, of course, that all the important powers had already been delegated in 1787, four years before the Tenth Amendment was ratified.

As we have seen, the first and last clauses of Article I, Section 8 made the Tenth Amendment a lame-duck measure even as James Madison composed its words in 1791 – and so it remains today. The sweeping powers “to make all laws necessary and proper” in order to “provide for the general welfare,” had already been bestowed upon Congress. The Johnny-come-lately Tenth Amendment closed the constitutional pasture gate after the horses had been let out.

This apparently has never occurred to the likes of Gov. Rick Perry and his far-Right cohorts who believe a state may reclaim power by withdrawing its consent, in effect repossessing their previously delegated power through state legislation. Superficially, the logic of this position seems sound: if the states had the legal authority to delegate power, then they may use the same authority to “un-delegate” it by law.

But a close re-reading of the Tenth’s wording nixes such reasoning. Oddly, the Tenth Amendment does not say the states delegated their powers to the federal government – although it may be argued that it probably ought to have said so. It says “The powers not delegated to the United States by the Constitution … are reserved to the States. …”

Thus, according to the Tenth Amendment, the Constitution itself delegated the power to the federal government. States, in other words, now have no standing to “reserve-back” what they had never “delegated-away” in the first place.

Had it been possible to “un-delegate” the powers of the United States by invoking the Tenth, the Old South would have simply done so and spared itself the bother of secession – not to mention the bother of being annihilated by a series of subsequent Northern invasions. The fact that the South did not even attempt such a strategy attests to the toothlessness of the Tenth Amendment.

No other instance in law would be a better example that we should choose our votes carefully. For in ratifying the Bill of Rights, which included the Tenth Amendment, the American people endorsed the legal fiction that the Constitution – not the original 13 states, or “We the People” – authorized the power of the United States because the Constitution itself said so. If the Constitution has an Orwellian twist, this is it – no matter which side of the aisle you’re on.

The states and the people may amend the Constitution. But they may not do so by nullification (according to the logic inherent in the wording of the Tenth Amendment), or by the judgment of state courts (according to the “supremacy clause” of Article VI), nor may any Amendment be made without the participation of the federal government, itself (according to Article V.) If the Founders had meant to
ensure “limited government,” there is no trace of such intent here.

Paucity of Rights

If the Constitution were intended to provide “limited government,” we might expect it to be chock full of guarantees of individual rights. This is what Tea Partiers may fantasize – but this is not really true. In fact, the Constitution is amazingly stingy in reference to “rights.”

–The word “right” is mentioned only once in the Constitution as ratified. (Art. I, Sec. 8 allows Congress to award copyrights/patents to ensure their holders “… Right to their respective Writings and Discoveries.”)

–The word “right” – somewhat counter-intuitively – appears only six times in the ten Amendments called the “Bill of Rights.”

Almost a century later, the first of seven other rights were added under pressure from Progressive activists – almost all of which were intended to create and extend democratic participation in self-government.

–Amendment XIV (sanctions against states denying suffrage); XV (universal male suffrage); XIX (women’s suffrage); XXIV (denial of poll tax); and XXVI (18 year-old suffrage); and twice in Amendment XX, which gives Congress the “right of choice” in presidential succession.

–In grand total, the word “right” appears only 14 times in the entire Constitution, as it exists today (including the two rights conferred to government).

Did we all notice that the “Constitution of the Founders” did not include the “right” for anybody at all to vote? Notable, too, is the absence of language implying that any “rights” are “unalienable” or “natural” or “endowed by their Creator.” All such phraseology belongs to the Declaration of Independence, which – apparently unbeknownst to Tea Partiers everywhere – bears no force of law.

The word “power,” by the way, occurs 43 times in the Constitution, each time referring exclusively to the prerogative of government, not right-wingers. Since “individual” rights are mentioned only 12 times, this yields a ratio of about 4:1 in favor of government power over individual rights. Without the efforts of those pesky, democracy-mongering Progressives, who fought for universal voting rights, the ratio would be more than 6:1 today – or 50 percent higher.

This statistical factoid is not as trivial as it may appear. Expressed in practical terms, Michele Bachmann, Sarah Palin or Clarence Thomas would almost certainly never have achieved public office had they lived under the “limited government” designed by the Founders they so revere.

The Bill of Rights

So what exactly are our non-patent/copyright “rights,” under so-called “limited government?”

–Amendment I – the right of people “peaceably to assemble, and to petition the government for redress of grievances”

–Amendment II – the right “to keep and bear arms, shall not be infringed”

–Amendment IV – the right “to be secure…against unreasonable searches or seizures”

–Amendment VI – the right “to a speedy and public trial”

–Amendment VII – the right “of a trial by jury”

–Amendment IX – enumeration “of certain rights” shall not deny “others retained by the people”

That’s it. What happened to the famous rights of free speech, religion or press? The way the First Amendment is worded does not enumerate these as positive rights that people possess, but rather as activities the government may not infringe upon. If Bill of Rights author James Madison had meant to stipulate them as positive “rights” all he had to do was write it that way, but he did not.

Bear in mind Madison (then a federalist) wrote the Bill of Rights under political duress. Since anti-federalists (recall the skepticism of Robert Yates) flatly refused to ratify the Constitution unless it guaranteed something, Madison had to write something. In effect, the amendments were the pig the anti-federalists had bought in the poke, three years after ratification had paid for it.

Madison, at the time of writing, had little incentive to take pains with what he wrote because federalists did not believe a Bill of Rights was necessary, or even good idea (with Alexander Hamilton arguing a Bill of Rights would be “dangerous.”) This may account for the fact that some of what Madison wrote seems vague, or even ambiguous, as in the case of Amendment II.

Amendment IX, for example, actually makes little sense, which may account for the fact nobody ever seems to mention it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This sounds “righteous” enough, until we recall the Constitution to which this Amendment pertains had “enumerated” only a single right in the first place! Even if Amendment IX applies to the Bill of Rights (to include itself), then all it says is “the people may have more rights than the half dozen mentioned so far, but we’re not going to tell you what they are.” (So if Amendment X is Orwellian, Amendment IX verges on Catch-22.)

Of course the idea was to calm suspicions that people would possess only the half-dozen rights enumerated in the Bill of Rights (plus patents!) and no others. Even so, Amendment IX did not guarantee any un-enumerated rights; it just did not peremptorily “deny or disparage” any.

And what sense should we make of the crucial Amendment V – one of the four Bills of Rights not actually containing the word “right” at all?

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]

Thus, life, liberty and property are not expressly granted status as fundamental “rights,” but only as personal possessions that may be deprived or taken according to “due process.” The crucial implication is that Amendment V exists in order to stipulate how the government may deny an individual claim to life, liberty or property. With due process, you life, liberty and property may be toast. That is what it plainly says.

It is interesting, too, that the Bill of Rights does not speak to the origin of rights, but only to their existence. Moreover, the Constitution never speaks of granting rights, but only protecting them. There is a good reason for this: excepting the Progressive suffrage Amendments, none of the guaranteed rights were American inventions, but had for centuries been considered the rights of the English nobility.

For those who want to believe in “American Exceptionalism” as the basis of “limited government,” this is not encouraging news. Moreover, the Constitution, including the Bill of Rights, hardly includes any “right” that had not already been recognized at one time or another by medieval English monarchs or in ancient Rome and Greece.

Property Rights and ‘Republic’

The strict libertarians among us claim the sole legitimate power of government is that which is necessary to protect private property rights. On this score, however, the “limited government” of the Founders is practically mute. Except for the aforementioned Article I, Section 8 provision for patents and copyrights, private “property” is only mentioned twice in the Constitution, both times in a single sentence of the “right”-less Amendment V quoted above:

“No person shall … be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]

Once again, Amendment V fails to guarantee personal immunity from the power of the state, but rather details the way state power may be used to dispossess individuals of their property. And we must bear in mind these words were not penned by Marxists, socialists, or Progressives.

Whether by design or happenstance, the original “Constitution of the Founders,” or the Bill of Rights, or even the Constitution with all its Amendments does not grant any irrevocable “right of possession” to property. Even the Second Amendment’s “right to keep” arms, is subject to the terms by which property may be taken under terms of Amendment V, and it always has been.

Tellingly, the word “democracy” does not appear in the Constitution. This intentional oversight is often smugly celebrated by anti-democrats among us, who insist that the United States of America was founded as a “republic.” No doubt this is true, given that the Constitution was written by an exclusive, hand-picked cadre of oligarchs, whose number did not include a single woman, person of color, or wage-earner.

Unfortunately for the pro-republic “limited government” crowd, the Constitution does not contain the word “republic” either. The word does appear as an adjective, but only once, (Article IV, Section 4): “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion…”

Typically for the Constitution, which defines few of its terms, the word “Republican” also remains unexplained. The ambiguity of the term turned out to be handy, however, as Radical Republicans continuously and egregiously violated Article IV, Sec. 4 from 1865-1877 as they enforced blatantly unconstitutional military occupation of former Confederate states during the gross misnomer of “Reconstruction.”

It should be obvious that the “Constitution of our Founders,” including the Bill of Rights, may not protect as many rights as many wish to believe. Moreover, we have already noted the Constitution dropped all revolutionary talk of “unalienable” rights and “Creator endowed” liberty. This was not an oversight.

The revolutionary bit about “consent of the governed” posed an especially delicate problem for the Founders. Almost all owned slaves or were masters of property-less tenants or domestic servants, including their wives – none of whom could offer their legal consent even if they wished to do so. Thus the Founders shrewdly considered it unnecessary to include any voting rights in the new republic they planned to rule, uncontested by the disenfranchised lower castes.

Did this result in the land of the free, with liberty and justice for all? Let’s see.

Under the U.S. Constitution, Americans were sentenced to death for protesting unfair taxes; journalists and citizens imprisoned for criticizing government officials; citizens’ property seized illegally; workers murdered by government agents; thousands jailed without the “privilege” of habeas corpus; entire states deprived of civilian courts; untold numbers of American Indians defrauded of  liberty and property; debt-peonage and debtors’ prisons flourished, as did slavery and child labor; and the majority of the public was denied the vote.

All this was considered constitutional by the Founders. None of these outrages, please note, was the result of “progressivism,” which had yet to be articulated, and all were common prior to the New Deal and the advent of so-called Big Government. Was this the face of “limited government?”

No, it was not. The concept of a democratically “limited government” was not for a moment entertained by our Founders, nor is it by those who idolize them today. With few exceptions, the Founders were Eighteenth Century patricians who took a revolutionary gamble meant chiefly to perpetuate their privileges, free from English colonial overlord-ship. It should come as no surprise these elitists drafted a Constitution that posed no threat to aristocracy.

‘Limited Government’ as Act of Faith

The original Constitution of the United States of America was just so much ink on paper. The Constitution, as it stands today, is just a lot more ink on paper.

But the Constitution’s ink is important and deserves respect because it represents nothing less than the collective civic conscience of the American people. A great many Americans have dedicated their lives in trust to that conscience – on battlefields, in classrooms, in everyday civic life, and even a few in the halls of power.

It is evident that most of the Amendments to the original Constitution – as well as the Supreme Court’s decisions interpreting its scope and purpose – were made because the document had over the course of time been found wanting by the American people, whose common interests it was not originally intended to serve. As the collective civic conscience of the people changed, so too did their interpretation of self-government.

But the entire concept of social evolution (much less biological evolution) is something the ultra-Conservative rank-and-file likely does not comprehend and it is not something their leaders encourage them to consider. The reason for this may have less to do with politics than with fundamentalist faith.

An anecdote in point: the editor-in-chief at Random House once asked the extremist libertarian Ayn Rand if she would consider revising a passage in one of her manuscripts. She reportedly replied, “Would you consider revising the Bible?”

Ergo, that which is sacrosanct neither requires nor will tolerate change – to include the fantasized “limited government” of the immortalized “Founding Fathers.” The fact that Rand was a noted atheist only underscores the point that fundamentalist faith is not restricted to any particular brand of fanaticism.

Yet the Constitution’s conception was anything but immaculate. It was not carted down from the Mount in tablets of stone, nor is it the product of some mysterious Natural Law interpretable only by libertarian gurus. And whether its meaning is best exemplified by the Tea Party flag depicting a talking snake (“Don’t Tread on Me”), perhaps only Eve could judge with authority.

The Constitution is not a holy book, and there is no good reason for anybody to treat it like one. The men who wrote it were not prophets, nor were they particularly virtuous, though some could turn a pretty phrase. In fact, the Constitution’s most unholy-book characteristic is its most welcomed attribute: its readers are not required to believe in its infallibility in order for it to make sense to them.

But we are required to read the Constitution if we want to know what it says. The ultra-conservatives’ obsession with a constitutionally “limited government,” which has never actually existed, suggests they do not understand the Constitution as much as they merely idolize it.

These constitutional fundamentalists – along with the American public in general – would do better to pick the document up and read it sometime, not fall on bended knee before it and expect the rest of us to follow their example.

Jada Thacker, Ed.D is a Vietnam veteran and author of Dissecting American History. He teaches U.S. History at a private institution in Texas. Contact: jadathacker@sbcglobal.net

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30 comments on “The Right’s Made-up ‘Constitution’

  1. Glenn on said:

    The right” has nothing but BS on their side, problem is, its stacked so high the general public can’t see whats on the other side.

  2. E.A. Blair on said:

    The “right” is also firmly on the side of curtailing voting rights while failing to notice that more amendments address the expansion of voting rights than any other single issue – and voting is the sole personal right that is addressed more than any other.

    I also wonder how many people are aware of the fact that the original Bill of Rights contained not ten, but twelve amendments? The original first amendment dealt with congressional pay and was finally ratified on 7 May 1992 (a mere 202 years, 7 months and 12 days after it was proposed) as the twenty-seventh amendment. The original second amendment dealt with congressional apportionment and is still pending 223 years, 9 months and 11 days after its proposal. Some right wingers make a big deal about the right to bear arms being so important that it was the second of the first ten amendments – it takes them down a peg to find out that it was actually the fourth of twelve.

  3. Bill on said:

    This is a brilliant take down and dismemberment of the right’s fundamental tenant, and ought to be heard and understood by everyone in America. I wish the authors of this piece, the contributing sources, and this website had equal access to our air waves as do the likes of our country’s dead beat billionaires & their partners in crimes against Democracy.

    • Sanford on said:

      I emailed the author of this article pretty much what you said excluding the part of the dead beat billionaires.

  4. gregorylkruse on said:

    This is great, but I doubt that any Tea Partiers will ever read it, and if they do, they will just come up with irrational constructs to hide behind so they can deny the truth and profess what they want to believe, or believe what benefits their status in life. So it has always been, but it has also always been that there are always a few people around who simply state the truth regardless of the consequences.

    • AndyW on said:

      Gregory – Agreed. What really gets me is Tea Partiers’ belief in, as you you say, “what benefits their status in life.” They are against so many initiatives that would surely improve that status (e.g., health care, education, voting rights) and for the things that solely benefit the right wing puppeteers funding the mis-information ads and the cost of their tri-corner hats.

      • Carol Schmidt on said:

        It should also be noted that the Second Amendment’s call for a WELL-REGULATED militia referred at its inception to the slave armies of the southern states whose job was to track down escaped slaves. They also had the job of visiting every major slave-holding plantation to go through all slave quarters to make sure the slaves were not holding guns or in any way plotting to escape or overthrow their owners. (Though actually, the way today’s right wingers talk about their rights to own guns and carry them anywhere, it sounds like their goal still is to keep African-Americans in their place.) The Second Amendment was a bone tossed to Virginia and other slave-owning states to keep them in the Constitution, ensuring their little state armies could still go around with their guns of the time to enforce slavery.

  5. Will Stockwin on said:

    Something else I’ve noted in my readings of the Constitution (as ratified) is the use of the word ‘militia.’ Modern gun nuts always overlook that part of the 2nd Amendment that states:”A well regulated Militia, being necessary to the security of a free State, …” as being unimportant, but the fact that ‘Militia’ appears four different times (3 in Article I, Section 8, and 1 in Article II, Section 2) indicates to me that the founders knew exactly how the need for a well-regulated Militia bestowed what originally was a collective right for members of a Militia to keep and bear arms. The idea that the 2nd Amendment confers an individual right to keep as many guns as you want, and to carry them around anywhere, anytime you please is a much more recent misinterpretation that has turned the country into Shooting Gallery America.

    • Rick on said:

      All the Bill of Rights (BR) can be better understood by reading the unanimous 1833 case Barron v. Baltimore. It makes clear that the BR was not intended to give individual rights but only to limit the national government. Thus so many of our rights came from the 14th amendment. Before the 14th states could limit speech, religion, and guns etc.

    • Dennis on said:

      Very true. I like telling gun guys that when they pick up their firearm, Obama is at that moment their Commander-in-Chief according to the Constitution they purport to revere so much (and until they do that, he is just their employee). Gives them something to think about, I hope.

    • Tell me, were you born this stupid, or is it something you had to study to achieve?

  6. Bill Dunn on said:

    What Gregory said.

  7. Tim Caffery on said:

    Didn’t even read it, but it should be “The Whites’ Made-up Constitution” if you’re serious about being accurate. It shouldn’t be honored, shared or spread. It should be burned like the flesh of all those it has, Manifest Destinied, itself onto. Idle No More, is the only real ‘human rights movement’. The rest of you are just trying to get your own share of the spoils. Too arrogant to let it go. Yes, leave. Seriously. Take your civilization and your children and leave. You guys are like a crew member on a pirate ship, who claims he isn’t a pirate. Only those brave enough to abandon ship prove they are not pirates. Go, please.

  8. Bob Healy on said:

    I personally like the 9th amendment. I take it to infer that people retain all rights not restricted by law. The constitution as amended protects certain rights from being restricted by law.

  9. Salvatore DiChristina on said:

    I have always thought that the State’s Rights Issue and the Doctrine of Nullifiocation was resolved in 1865. It seems the South is still in denial. They are now relying on state laws and the courts to deny certain factions of our society the Rights granted to all Americans.
    But therein lies the problem. Some members of this particular Supreme Court rules one way on the voting issue and just the opposite on a similar issue. In the Texas voting rights ID case it ruled that states have the right to determine voting qualifications. In other words in matters dealing with voting only the state can determine who votes. By the same token it is the states that determines the winners of elections and the states determine the procedure to be used in counting and/or recounting votes in close elections. The Bush vs Gore court seemed to ignore the right of Florida following its legally legislated recount method. The first instance in the history of this nation where a Supreme Court entered as Justice Frankfurter said the Supreme Court should never enter, “the political thicket”.

  10. Pete on said:

    A libertarian is just a red neck anarchist.

  11. chuck thomas on said:

    The Constitution was clearly an expansion of centralized power– particularly the right to tax and to maintain a standing army–things Washington could not do under the Articles of Confederation. Not many extreme rightist ideologues have any idea that this is true. Open and honest debate is not likely when people have no knowledge of history.

  12. The Founding Fathers were breaking away from England and the all-imposing type of gov’t they had; the same type of all-imposing gov’t the political left wishes to inflict upon American citizens today (though they deny that’s what they want, we know better). Highly unlikely the Founding Fathers wanted to re-impose upon the people the very form of gov’t they fought and died to expel. They wanted a limited gov’t, that much is clear.

  13. JohnGalt on said:

    Ahhh… the fly in the ointment? While the author may certainly have read the Constitution itself, the Constitution does not exist in a legal vacuum. There are Fundamental Principles of Law that go all the way back to the Sumerians and Akkadians, read it and weep:
    “WHAT IS A PREAMBLE
    (1) Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the statute and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed. It has been held however to not be an essential part of the act, and neither enlarges nor confers powers.

    SOURCE: Black’s Law Dictionary, abridged Sixth Edition, Centennial Edition (1891-1991) West Publishing Co. (1991) p 813

    (2) PREAMBLE. A preface, an introduction or explanation of what is to follow: that clause at the head of acts of congress or other legislatures which explains the reasons why the act is made. Preambles are also frequently put in contracts to, explain the motives of the contracting parties,

    2. A preamble is said to be the key of a statute, to open the minds of the makers as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statutes. It cannot amount, by implication, to enlarge what is expressly given. 1 Story on Const. B 3, c. 6. How far a preamble is to be considered evidence of the facts it recites, see 4 M. & S. 532; 1 Phil. Ev. 239; 2 Russ. on Cr. 720; and see, generally, Ersk. L. of Scotl. 1, 1, 18; Toull. liv. 3, n. 318; 2 Supp. to Ves. jr. 239; 4 L. R. 55; Barr. on the Stat. 353, 370.” So, no, the general welfare clause in the preamble is of no legal consequence, and the general welfare clause in paragraph 1 of Section 8, as it is itself a part of Section 8, is still bound by the limits as set forth in Section 8 and not expansive beyond the universe within which it resides. Nice try though. Just the simple Logic of it should be enough. If a Constitution IS NOT for the purpose of BINDING a government, if it UNBINDS the government to do as it will, WHY EVEN HAVE A CONSTITUTION in the first place? Why even pretend?

  14. Tim Fitzgibbon on said:

    Reading of the Constitution also shows that the Second Amendment could not possibly apply to handguns. Guns are virtually useless for a militia. They are not accurate at more than 10 feet. And when they hit their intended target, they exhibit poor stopping power.
    Handguns are such a poor choice of weapons that the FBI uses rifles instead of handguns when they expect resistance. Can you imagine an army or militia marching with handguns on their shoulders. Of course not. But the Supreme Court can. Handguns didn’t even exist at the time the Constitution was written. So much for strict interpretation that the conservative justices espouse.
    The Supremes took a perfectlyly valid law in DC and declared it unconstitutional because they thought it violated the Second Amendment. I do not know how they can justify preventing the residents of the District of Columbia from having a law that protects them, while at the same time they permit metal detectors to prevent people from carrying weapons into court buildings, Congress and on airplanes.
    That is just not how a Democracy should work and not what the Constitution says how our government should work.

  15. Eddie on said:

    Great article – - adds much needed context to the debate surrounding the Federalists/Constructionists/’states rights’.

  16. Jada Thacker on said:

    “So, no, the general welfare clause in the preamble is of no legal consequence, and the general welfare clause in paragraph 1 of Section 8, as it is itself a part of Section 8, is still bound by the limits as set forth in Section 8 and not expansive beyond the universe within which it resides. Nice try though. Just the simple Logic of it should be enough.”

    Could you please expand on the logic part?

    • gregorylkruse on said:

      Kodachrome- One of my favorites. Paul Simon is one of those who insisted on telling the truth regardless of the consequences.

  17. Michael on said:

    Hi Jada – Douglas Wilson has written a compelling response to your post at dougwils[dot]com. Would be interested in seeing some dialogue between you two.

  18. Jada Thacker on said:

    Michael — I just posted my response on Wilson’s blog. Thanks for the heads up.

  19. dieter heymann on said:

    In his brilliant defense of the proposed constitution Alexander Hamilton warned that “sovereign states” acting like European nations would inevitably form one or several alliances which would inevitably lead to war. Hamilton’s concern was fully confirmed by our civil war. However, the civil war did end all pretense of “sovereign states”. Today there is only one “sovereign entity” namely the USA which is what the new constitution demanded. Talks of “sovereign states” is dangerous prattle. Nullification is (or should be) dead.

  20. Jada Thacker on said:

    Dieter-

    In his defense of the proposed Constitution, Hamilton warned many dire things would happen if it were not adopted — not what dire things might happen after is was. In effect, Hamilton sounded much like an insurance huckster today. It was Hamilton’s opponents who warned of the dire consequences of adopting the Constitution — particularly Richard Henry Lee, who said that adoption would lead, in his words, to civil war. Presto.

    I would judge that Lee was a better prognosticator than Hamilton, who told us all would be well if we signed on the dotted line.

  21. Andrew Lohr on said:

    What about the Declaration of Independence? Governments exist to protect the rights of the governed, not, to exercise unlimited powers.

    You may have shown we need a stronger bill of rights. You may have shown the Constitution as it stands is “a covenant with death, and an agreement with Hell,” needing to be replaced.

    If the constitution cofers unlimited powers, why were certain powers enumerated, e.g. the power to regulate private warships?

  22. Andrew Lohr on said:

    Do you trust democracy? Are Muslims allowed to vote in a government that bans non-Islamic worship?

  23. NewCBob on said:

    Jada,

    Your view of Reconstruction and the radical Rupublicans of the time seems to be at odds with Mr. Parry’s in his article on white GOP racism. Do you think it is, and would you care to expand on it? Maybe Mr. Parry could comment also. I’d like to hear more about the period.

    Excellent article.