Exclusive: Right-wing propagandists have gulled many of their followers into accepting a false narrative of America’s Founding, a made-up history that now has become the basis for some extremists to call for President Obama’s trial for “treason,” an idea that Mitt Romney only belatedly rejected, reports Robert Parry.
By Robert Parry
A woman’s suggestion that President Barack Obama “should be tried for treason” for supposedly “operating outside the construction of our Constitution” has raised a stir because Republican presidential candidate Mitt Romney initially chose not to challenge her. But the news media has ignored the substance – or lack thereof – of the woman’s accusation.
The woman’s “treason” charge at a town-hall meeting in Euclid, Ohio, on Monday fits with a right-wing disinformation campaign about what the Framers of the Constitution intended and what the Constitution actually says.
In recent years, as the vast reservoir of right-wing money-in-politics has overflowed its banks, some of that cash has sloshed down to propagandists who have worked hard at rewriting the nation’s founding narrative, to transform the Constitution’s Framers into anti-government zealots.
This false narrative – with the Framers starring as Ayn Rands of the 18th Century – has contributed to the modern Right’s extremism, since many of today’s Tea Partiers envision themselves as brave patriots ready to die for the nation’s founding principles. But they have only a distorted view of what those principles are.
Run-of-the-mill politicians like Romney then pander to this ignorance with talk about the Constitution as “inspired” or “sacred” as if this decidedly secular governing document with its sometimes unseemly compromises (such as tolerance of slavery) was the work of the Almighty.
But the Right’s anti-historical narrative of the Founding has a strong appeal to many ill-informed Americans, like those who dress up in Revolutionary War costumes, channel the anger of the original Tea Partiers and wave “Don’t Tread on Me” flags against their own government, apparently not realizing that the real Founders were directing their anger at the British Crown.
The Founders – and especially the Framers of the Constitution – were surely not anti-government extremists as the Right today presents them. They were intent upon creating an effective governing structure that could build a young nation and address its many challenges, especially confronting economic and political threats to its independence from European powers.
The key Framers, such as James Madison and George Washington, pressed for a vibrant central government to replace the weak version that existed under the Articles of Confederation, which made the states “sovereign” and “independent” – language that was eliminated by the Constitutional Convention in 1787.
The new structure, devised primarily by Madison, made the laws of the federal government supreme and gave Congress broad powers to enact legislation “to promote the general Welfare.” Madison inserted the Commerce Clause so the central government could coordinate the nation’s economic strategies to thwart predatory practices of European rivals and to build a stronger country.
A fair reading of U.S. history reveals most Founders to be highly practical individuals, inspired by a mix of pragmatism and patriotism. From the start, they advocated a public-private partnership with government working collaboratively with businessmen to solve problems. [See Consortiumnews.com’s “America’s Founding Pragmatism.”]
Distorting the Framers
But today’s right-wing propagandists have worked diligently, scouring the historical record in search of quotes that can be plucked out of context and used to mislead gullible Americans into a false narrative.
Perhaps most bizarrely, the Right has sought to transform James Madison, the Constitution’s chief architect, into an early version of Rep. Paul Ryan by harping on comments that Madison made in Federalist Paper No. 45, in 1788 when he was trying to tamp down heated opposition to his new governing structure by playing down how radical the changes actually were.
Trying to finesse the opposition to his plan of enhanced federal powers, Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”
But even that was an admission from Madison that the Constitution added teeth to what had been toothless authorities theoretically granted to the central government under the Articles of Confederation. Making these powers meaningful was itself a significant change – and Madison clearly was soft-pedaling some of the new powers.
Madison wrote: “The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.” In other words, the power to regulate interstate commerce, the bane of modern conservatism, was viewed by Madison (and other Framers) as a commonsensical and noncontroversial measure.
The Right’s propagandists never take note of that quote from Madison. Nor do they explain to their followers the broader context of the Constitutional Convention and why Madison and Washington were so determined to scrap the Articles of Confederation.
General Washington had strong personal reasons for hating the Articles of Confederation, which had allowed the 13 “independent” states to renege on their financial commitments to the Continental Army. Not only did Washington have to watch his troops suffer, but he put down an incipient mutiny against Congress which might have drastically changed the course of U.S. history.
After the war, Washington also was frustrated by the lack of national cooperation under the Articles, undermining economic reconstruction. Washington, like other Founders, had invested in undeveloped land to the west and recognized the necessity to build canals and roads for reaching this territory and making it more valuable.
In 1785, Washington established the Potowmack Company, which began digging canals to extend navigable waterways westward along the Potomac River. But these efforts were hampered by the national disorganization under the Articles of Confederation.
The Commerce Clause
At first, Madison sought to amend the Articles to give the central government power over national commerce. Washington strongly supported this move, writing:
“The proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure. We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”
But Madison’s amendment failed, leading him to envision a more radical strategy for junking the Articles altogether. Again working with Washington, Madison put this new governing structure before the Constitutional Convention in Philadelphia.
Meeting in secret, supposedly just to consider amendments to the Articles, the delegates instead debated replacing the Articles with a new Constitution, a move that represented the most significant shift in authority from the states to the central government in U.S. history. Madison’s Commerce Clause also was back in play.
On May 29, 1787, the first day of the Convention’s substantive debate, Virginian Edmund Randolph presented Madison’s framework. Madison’s convention notes quote Randolph as saying “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation – such as a productive impost [or tax] – counteraction of the commercial regulations of other nations – pushing of commerce ad libitum – &c &c.”
In other words, the Founders – at their most “originalist” moment – understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum – &c &c” notation suggests that Randolph provided other examples off the top of his head.
Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”
So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of the central government was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic success.
The Framers also knew what they were doing. As historian Richard Labunski wrote in James Madison and the Struggle for the Bill of Rights, “no one knew better than the delegates that the proposed Constitution would drastically alter the structure of government. Much of the power of the states would be taken from them.”
The point also was not missed by the advocates of states’ rights. After the Constitutional Convention disclosed its new plan, Anti-Federalists, led by Virginia’s Patrick Henry, mounted a fierce campaign to defeat Madison’s scheme because they recognized that it concentrated power in the central government.
For instance, dissidents from Pennsylvania’s convention delegation wrote: “We dissent … because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.” [See David Wootton, The Essential Federalist and Anti-Federalist Papers.]
As resistance to Madison’s plan spread – and as states elected delegates to ratifying conventions – Madison feared that his constitutional plan would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.
So, Madison – along with Alexander Hamilton and John Jay – wrote a series of essays, called the Federalist Papers to counter the fierce (though generally accurate) attacks by the Anti-Federalists against the Constitution’s broad assertion of federal power.
Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers.
However, Madison also made the case for the practical advantages of a stronger central government. In Federalist Paper No. 14 – which today’s Right ignores – Madison wrote about the advantages that would accrue from the Commerce Clause.
“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.
“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”
In other words, Madison was selling the idea of a public-private partnership in which the central government would play a key role building an infrastructure for the new nation. Madison’s ideas are echoed today not by the Tea Partiers and the Right, but by Barack Obama.
Of course, the Founders did care about limited government and individual liberty (at least for white men). Many viewed a Republic under a Constitution as an important bulwark against the excesses of democracy, then a fairly untested system of governing.
That explains the Constitution’s intricate checks and balances and the six-year terms for senators, originally appointed by state legislatures. But today’s Right is wrong in interpreting those checks and balances as a desire among the Framers for a gridlocked system of government that allows a minority to block action on the nation’s challenges.
Nor did the Framers envision an ideologically driven Supreme Court majority altering the Constitution by fiat, as many analysts believe the current five Republican justices will do in overturning the Affordable Care Act on health-care reform.
Today’s Right loves to impress its ill-informed followers with fancy phrases like “enumerated powers of the Constitution” but ignores the fact that the Commerce Clause is an enumerated power of the Constitution, granting Congress unfettered authority to regulate interstate commerce.
The Right also keeps insisting that there must be a “limiting principle” in the Commerce Clause, but the Framers included none, except for the political need to pass legislation through the two chambers and get the President’s signature.
Even, thoughtful conservative jurists in lower courts have agreed that the Affordable Care Act does conform to the language of the Constitution. For instance, in a Nov. 8, 2011, ruling, U.S. Appeals Court senior judge Laurence Silberman, an appointee of Ronald Reagan, wrote a legal opinion affirming the law’s constitutionality.
“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’” [Emphasis added by Silberman]
Silberman continued: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’
“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.
As Silberman noted, there is “no textual support” in the Constitution for people to challenge the individual mandate at the heart of the Affordable Care Act.
But the Right wants its followers to believe that – despite the clear language of the Constitution and the intent of the Framers to give Congress broad powers to fashion policies to respond to the nation’s commercial needs – the Affordable Care Act is “unconstitutional” and the Supreme Court’s GOP majority might agree.
High Court Hypocrisy
You might think that the Supreme Court justices, especially conservatives who call themselves “strict contructionists,” would honor the “originalist” intent of the Framers. But that was not the impression left by the five Republican justices when they heard arguments on the law.
Instead of a serious discussion of constitutional issues, the Republican justices peppered U.S. Solicitor General Donald B. Verrilli Jr. with silly what-if questions, like could the government require Americans to buy broccoli?
Strictly speaking, the constitutional answer to the broccoli question would be yes – if those activities were deemed part of interstate commerce and if Congress and the President had the political will to do so. The practical answer, of course, would be no, since that idea would be nutty.
Dreaming up crazy hypothetical possibilities has become something of a cottage industry on Fox News and other right-wing talk shows, but it was still shocking for many to hear these talking points coming out of the mouths of Supreme Court justices.
Even more shocking in a way was a question posed by Justice Anthony Kennedy, who is often considered the most reasonable Republican on the High Court, though he has a troubling history of perverting the Constitution for partisan ends. He was the author of the Bush v. Gore decision that misused the 14th Amendment to put popular-vote loser George W. Bush in the White House. [For details, see Neck Deep.]
Kennedy told Solicitor General Verrilli that the government faced “a heavy burden of justification” for the individual mandate on Americans to buy insurance, the provision at the heart of the Affordable Care Act. Like his Republican cohorts, Kennedy insisted that Verrilli offer “some limits on the Commerce Clause.”
However, in his comments, Kennedy turned the actual “burden” on its head. It was the Framers of the Constitution who decided that the Commerce Clause should be open-ended, in part because they knew that the future challenges to the United States could not be fully anticipated. They left these future choices up to the democratic process and congressional debates.
It was not up to the Obama administration to revise the Constitution by saying what limits there should be in the Commerce Clause regarding legislation necessary for the country to compete economically or “to promote the general Welfare.”
And the Tenth Amendment, another favorite talking point of the Right, wouldn’t apply in this case either, since it only reserves for the states and the people “the powers not delegated to the United States by the Constitution” – and the Commerce Clause is an enumerated power.
In her support of a “treason” trial, the woman in Ohio may have been referring to President Obama’s insistence that the Affordable Care Act is constitutional and urging the Supreme Court not to overstep its bounds by reinterpreting the Constitution in order to strike down a law enacted by the elected branches of government.
But it should come as no surprise that the President and the members of Congress who voted for the law believed it was constitutional, even if five Republicans on the Supreme Court might decide later to disagree.
Ironically, when past Supreme Courts have interpreted the Constitution to justify expanding individual liberties, like ending racial segregation or respecting personal privacy, the Right has railed against this “judicial activism” or what right-wing legal theorist Robert Bork called “judicial imperialism,” that is, justices going beyond a strict reading of the Constitution.
Now, it appears that some on the Right wish to follow up the expected decision by the Supreme Court’s five Republican justices to strike down the Affordable Care Act by holding a treason trial of Barack Obama.
After failing to speak out against this idea, which drew cheers at Monday’s Ohio town hall, Romney belatedly responded to questions from the news media, saying “obviously, I don’t agree that he should be tried.”
[To read more of Robert Parry’s writings, you can now order his last two books, Secrecy & Privilege and Neck Deep, at the discount price of only $16 for both. For details on the special offer, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.