How Scalia Distorts the Framers

Exclusive: In rejecting the Commerce Clause as the constitutional foundation for the Affordable Care Act, the Supreme Court’s right-wing justices distorted America’s founding narrative, including one made-up view attributed to Alexander Hamilton, writes Robert Parry.

By Robert Parry

Antonin Scalia and the three other right-wing justices who sought to strike down health-care reform cited no less an authority on the Constitution than one of its key Framers, Alexander Hamilton, as supporting their concern about the overreach of Congress in regulating commerce.

In their angry dissent on June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws  . . .  spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

A portrait of Alexander Hamilton by John Trumbull, 1792.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about “Obamacare” from the distant past of 1788.

Except that Scalia and his cohorts are misleading you. In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”

Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America’s liberties.

In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”

It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

In other words, last week’s dissent from Scalia and the three other right-wingers does not only apply Hamilton’s comments to the wrong section of the Constitution but reverses their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

Twisting the Framers

It is ironic indeed that Hamilton’s words, countering alarmist warnings from his era’s conservatives, would be distorted by this era’s conservatives to spread new alarms about the powers of the Constitution.

Scalia’s distortion also underscores a larger tendency on the Right to fabricate a false founding narrative that transforms key advocates for a strong central government the likes of Alexander Hamilton and James Madison into their opposites, all the better to fit with the Tea Party’s fictional storyline.

Of course, Scalia’s deception would be an easy sell to typical Tea Party advocates, whose certainty about their made-up history would be reinforced as they stand this Independence Day with the Framers, complete with tri-corner hats from costume shops and bright-yellow “Don’t Tread on Me” flags.

Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America’s chaotic health-insurance system, as a step toward a despotic scheme that would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

Some Supreme Court watchers even suspect that it may have been Scalia’s intemperate tone that pushed Chief Justice John Roberts from a position of initially rejecting the Affordable Care Act outright as an unconstitutional use of the Commerce Clause to supporting its constitutionality under congressional taxing powers.

The four more liberal justices endorsed the law’s constitutionality under the Commerce Clause but also joined with Roberts on his tax conclusion, thus upholding the law and sending Scalia and his three right-wing cohorts Anthony Kennedy, Clarence Thomas and Samuel Alito into a further paroxysm of rage.

What becomes clear in reading the dissent is that not only do the right-wing justices misrepresent the views of the Framers regarding the Commerce Clause, these justices misunderstand a central reality of why the Framers wrote the Constitution in 1787.

The Framers junked the states-rights-oriented Articles of Confederation in favor of the Constitution because they wanted to solve the nation’s problems.

Founding Pragmatists

Led by James Madison and George Washington, the drafters of the Constitution crafted a profoundly pragmatic document, filled not only with political compromises to pull together the 13 squabbling states but looking for practical solutions to address the challenges of a new, sprawling and disparate nation.

The Commerce Clause, which grants Congress the power to regulate interstate commerce, was not some afterthought but rather one of Madison’s most cherished ideas, as Justice Ruth Bader Ginsburg noted in her opinion on behalf of the Court’s four more liberal members.

Citing a 1983 ruling entitled EEOC v. Wyoming, Ginsburg noted that “the Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’”

That problem was a lack of national coordination on economic strategy, which hindered the country’s development and made the nation more vulnerable to commercial exploitation by European powers, which looked to divide and weaken the newly independent United States.

Ginsburg wrote: “Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable, because the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole.”

The Articles of Confederation, which governed the country from 1777 to 1787, had explicitly asserted the “independence” and “sovereignty” of the 13 individual states, making the central government essentially a supplicant to the states for necessary financial support.

After watching the Continental Army suffer when the states reneged on promised funds, General Washington felt a visceral contempt for the concept of sovereign and independent states. He became a strong supporter of Madison’s idea of a stronger central government, including one with the power to regulate commerce.

In 1785, Madison proposed a Commerce Clause as an amendment to the Articles, with Washington’s strong support.

“We are either a united people, or we are not,” Washington wrote. “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.”

Alexander Hamilton, who had served as Washington’s chief of staff in the Continental Army, explained the commerce problem this way: “[Often] it would be beneficial to all the states to encourage, or suppress, a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest.”

Madison himself wrote, regarding the failings of the Articles, that as a result of the “want of concert in matters where common interest requires it,” the “national dignity, interest, and revenue [have] suffered.”

However, Madison’s commerce amendment failed in the Virginia legislature. That led him to seek an even more radical solution scrapping the Articles altogether and replacing them with a new structure with a powerful central government whose laws would be supreme and whose powers would extend to coordinating a strategy of national commerce.

Building the Framework

As Madison explained to fellow Virginian Edmund Randolph in a letter of April 8, 1787, as members of the Constitutional Convention were gathering in Philadelphia, what was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.”

On May 29, 1787, the first day of substantive debate at the Constitutional Convention, it fell to Randolph to present Madison’s framework. The Commerce Clause was there from the start.

Madison’s convention notes on Randolph’s presentation recount him saying that “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 U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.

This pragmatism imbued Madison’s overall structure even as he included intricate checks and balances to prevent any one branch of government from growing too dominant. The final product also reflected compromises between the large and small states and between Northern and Southern states over slavery, but Madison’s Commerce Clause survived as one of the Constitution’s most important features.

However, the Constitution’s dramatic transfer of power from the states to the central government provoked a furious reaction from supporters of states’ rights. The Articles’ phrasing about state “sovereignty” and “independence” had been removed entirely, replaced with language making federal law supreme.

The Anti-Federalists recognized what had happened. As dissidents from the Pennsylvania 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.”

Winning Ratification

As resistance to Madison’s federal power-grab spread and as states elected delegates to ratifying conventions Madison feared that his constitutional masterwork 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 began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.

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. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.

For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by 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.”

While ignoring Federalist Paper No. 14, today’s right-wingers are fond of noting Madison’s Federalist Paper No. 45, in which he tries to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.

Rather than view this essay in context Madison finessing the opposition the modern Right seizes on Madison’s rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution’s federal powers were contained in the Articles of Confederation, albeit in far weaker form.

In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” 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.”

Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

But the Right generally ignores another part of No. 45, in which Madison writes: “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 his ruling joining with his fellow right-wing justices in rejecting the application of the Commerce Clause to the Affordable Care Act Chief Justice Roberts does mention that line from Federalist Paper No. 45. However, he spins Madison’s meaning into a suggestion that the Commerce Clause should never contribute to any controversy.

Looking to the Future

However, what Madison’s comments about the Commerce Clause actually demonstrated was a core reality about the Framers that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18th Century.

As Hamilton wrote in Federalist Paper No. 34, “we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.

“Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

Indeed, the Commerce Clause was a principal power that Madison crafted to deal with commercial challenges both current to his time and future ones that could not be anticipated by his contemporaries.

There also was a reason why the Framers made the power to regulate interstate commerce unlimited. They wanted to invest in the elected representatives the United States the ability to solve future problems.

In Madison’s day, the nation’s challenges included the need for canals and roads that would move goods to market and enable settlers to travel westward into lands that European powers also coveted. Always a principal concern was how European competition could undermine the hard-won independence of the nation.

Though the Framers could not have envisioned the commercial challenges of the modern world, American businesses remain under intense foreign competition today, in part, because of an inefficient health-care system that imposes on U.S. businesses the cost of health insurance that drives up the price of American goods.

Under the current system, not only do many American businesses pay for their employees’ health care while most other developed nations pay medical bills through general taxation but U.S. companies indirectly pick up the cost of the uninsured who get emergency care and don’t pay.

So, a law that makes American businesses more competitive by addressing this “free-rider” problem and by assuring a healthier work force would seem to be right down the middle of the Framers’ intent in drafting the Commerce Clause.

No Practicality

In contrasting Justice Ginsburg’s opinion on the Affordable Care Act with Scalia’s dissent, one of the most striking differences is how the Framers are understood: Ginsburg sees them as pragmatic problem-solvers, while Scalia envisions them as rigid ideologues placing individual freedom above practical goals.

The core of the Scalia-written dissent is that the Constitution is NOT about solving problems, but rather following the most crimped interpretation of the words. Indeed, he ridicules Ginsburg for viewing the founding document as implicitly intended to give the elected branches of government the flexibility to address national challenges.

Yet, there was little question from either side that virtually every American participates in the commerce of health care from birth to death and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is clearly a national market.

In the dissent, the four right-wing justices acknowledged that “Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercis­ing the powers accorded to it under the Constitution.

“The question in this case, however, is whether the complex structures and provisions of the Affordable Care Act go beyond those powers. We conclude that they do.”

Scalia noted that Ginsburg “treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress, among which, it finds, is ‘the Nation’s course in the economic and social welfare realm,’ and more specifically ‘the problem of the uninsured.’

“The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce.

“None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-­problem power.”

The right-wing justices insisted that the power to “regulate” commerce couldn’t possibly cover something like a mandate to buy health insurance.

Chief Justice Roberts in his own opinion, which rejected use of the Commerce Clause but then justified the Affordable Care Act under the Constitution’s taxing powers  decided that some of the definitions of the word “regulate” couldn’t be applied because they were not the first definitions in the dictionaries of the late 18th Century.

In an earlier opinion upholding the Affordable Care Act, conservative U.S. Appeals Court Judge Laurence Silberman noted that “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.

However, in Roberts’s ruling, the Chief Justice threw out certain definitions for “regulate”, such as “[t]o order; to command”, saying they were not among the top definitions in the dictionaries of the time. Roberts wrote, “It is unlikely that the Framers had such an obscure meaning in mind when they used the word ‘regulate.’”

Needing Health Care

Scalia and Roberts also adopted a very narrow concept of participation in the health-care industry. Though it’s undeniable that virtually all Americans from birth to death receive medical care of various types and at different times, the Court’s five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.

Roberts wrote: “An individual who bought a car two years ago and may buy another in the future is not ‘active in the car market’ in any pertinent sense. The phrase ‘active in the market’ cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to ‘regulate the uninsured as a class.’”

But, as Ginsburg noted in her opinion, this comparison is off-point, because a person can plan for the purchase of a car but often is thrust into the medical industry by an accident or an unexpected illness.

Over and over again, the five right-wing justices behaved as if they started out with a determination to reject a constitutional justification under the Commerce Clause and then dreamt up legal wording to surround their preconceived conclusion.

In doing so, they treated the Constitution as some finicky legal document rather than what the Framers had intended, a vibrant structure for solving national problems.

And, as for the Framers’ views regarding mandating American citizens to buy a private product, one can get a good idea of their attitude by examining the actions of the Second Congress in passing the Militia Acts, which mandated that every white male of military age buy a musket and related supplies.

That Congress included actual Founders, such as James Madison. The law was signed by George Washington, another Founder. [See’s “The Founders’ Musket Mandate.”]

So, despite what today’s Right wants you to believe, the Framers were not hostile to a strong central government; they were not big advocates of states’ rights; they were not impractical ideologues contemplating their navels or insisting on some hair-splitting interpretation of their constitutional phrasing.

Rather, they were pragmatic individuals trying to build a nation. They wrote the Constitution specifically so the country could address its pressing problems and match up competitively with America’s foreign rivals.

Since Justices Scalia, Kennedy, Thomas and Alito don’t have the real history on their side, they apparently saw little option but to make up their own.

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 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.

21 comments for “How Scalia Distorts the Framers

  1. Dr. Eduardo M. Rivera
    July 7, 2012 at 07:36


    The answer is the United States. The United States is Washington, D.C. and every other place in the world where there are Americans and the land those Americans occupy is territory owned by or subject to the exclusive legislative power of the United States of America.

    The United States of America began as an upstart nation with the announcement in the Declaration of Independence of July 4, 1776 of a formal unilateral political separation from Great Britain and King George III. There immediately followed documentary evidence of the initiation of the permanent formation of a Confederacy to be known as the United States of America. The Articles of Confederation of November 15, 1777 were quickly ratified on December 16, 1777, by Virginia, but it would take until March 1, 1781, for Maryland, the thirteenth State to ratify the Articles of Confederation into full force.

    Military victory over Great Britain in America meant the United States of America was destined to be a great nation among the other nations of the world. The Treaty of Paris of 1783 would provide the Confederacy, the United States of America, the opportunity to claim what it lacked and what the other nations of the world had as a matter of course—territory, and with it the power to legislate and the power to tax in that territory.

    Logically, as proprietor of the Northwest Territory and the land claims ceded to the United States of America by some of the States, the United States in Congress assembled had all the power and authority it needed to administer the territory owned by or subject to the exclusive legislative power of the United States of America. The Confederation Congress used this power and authority to establish a temporary government for the Northwest Territory by enacting the Northwest Ordinance of July 13, 1787.

    It is obvious today that the Confederation Congress had planned the Northwest Ordinance of July 13, 1787 to be the third Organic Law a couple of months ahead of the fourth Organic Law, the Constitution of September 17, 1787.

    Just as the Declaration of Independence and the Articles of Confederation are perfectly paired to secure the freedoms of all Americans by denying the national government taxing and lawmaking power, the Northwest Ordinance and the Constitution of the United States are uniquely mated to subject all Americans to laws and taxes which apply only in the United States or only to citizens of the United States.

    What in the Northwest Ordinance of July 13, 1787 makes the “United States” the territory owned by or subject to the exclusive legislative power of the United States of America? Article 4 of the Northwest Ordinance of July 13, 1787: “The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made.” The State of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota are the first United States which belongs to the United States of America.

    Whether individual members of Congress know it or not, every law passed by the House of Representatives and the Senate and signed by the President of the United States is limited to the United States territory or to citizens of the United States. The Article I Section 1 lawmaking power in the Constitution of the United States: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” have always been limited by the Northwest Ordinance to the territory owned by or subject to the exclusive legislative power of the United States of America.

    The United States of America remains the Confederacy and as such is a government of 50 States. Furthermore, because it has territory with a population it is a nation with laws one of which is Obamacare. The Individual Mandate is constitutional as a penalty and as a tax because no one has a right to be in the United States.

    Dr. Eduardo M. Rivera

  2. nemo
    July 5, 2012 at 15:49

    Usual disclosure: I am not a lawyer.

    During the course of their deliberations, the supporters of Obamacare mentioned Raich several times. Unless I am mistaken, Raich was taken to be the final nail in the ‘State’s Rights’ arguments, in that intrastate commerce was now Congress’s purview as well, and thus all checks and balances against Federal intervention regarding ALL internal state matters can be ignored…or so Thomas’s dissent in Raich seemed to imply.

    In short, this would seem to imply that the States are (and actually have been for decades) little more than provinces in a a de facto empire in relation to the central government, with their various legislatures relegated to the status of impotent high school debating societies without any power to actually govern within their own boundaries…which is essentially what a lot of the Raich dissent was all about. A ruling in favor of Raich might have ‘unzipped the polymer’ of the vast Federal bureaucracy by Raich‘s basic challenge to Federal primacy…the proponents for which were apparently terrified of.

    So…now, in the name of ramming Federal suzerainty even further down State throats, those who do not have health care will be penalized by a de facto tax in order to pay for what they originally may not have wanted, and this is considered legal due to Federal (Imperial) fiat over the formerly ‘sovereign’ states. King George 3 and his pal ‘Champagne Charley’ must be laughing their arses off in Hell…we did it to ourselves, after all.

  3. dahoit
    July 5, 2012 at 11:58

    I aint got much faith in any branch of our government,but at least I know that forcing people to buy health insurance from neolibcon capitalist thieves is Unconstitutional,and not freedom,but economic slavery,and if this is the best democrats can do,screw them and their propagandists too,as a vote for Romney will at least give US sh*t sandwiches called as such,and not Affordable?Care.,a most devious and corrupt description.

    • dbtexas
      July 5, 2012 at 20:25

      I think you are out of your element here. I assume you are fine paying for the “free riders.”

  4. July 5, 2012 at 05:40

    I put the url in my “for later reading” file – but read some of it and from what I read Bravo. But it’s no surprise that Scalia & his Universal dissenters (ever notice they all have the same mind?) would misrepresent Hamilton. Scalia, Thomas and Alito are all members of the so called “federalist society” along with Bork and ChJ Roberts too. The “federalist society” is in reality a group of anti-federalists. There is absolutely no commonality between “the federalist society” and the Federalist Party. So the whole thing even the appellation is a fraud. There was a States Rights movement that more or less died when LBJ blew away Goldwater that held the same basic tenets as the present day Conservatives – i.e., the GOPstapo which is comprised of people that the Democratics said ‘go away’ or else ‘no’ to and their apparently noveau philosophy, which is rather anachronistic was then referred to a “the new federalism”. Scalia and others perpetuating this fraud which was imposed religiously under the RayGun regime is now simply referred to as “federalism”. These people are rather unremarkable people just like most of the anti-federalists were in fact Scalia is about the most remarkable of the whole crrew because he somehow apparently learned how to speak French. All of these persons having been appopinted and worse confirmed, except for Kennedy, is truly a disgrace to the Court and quite frankly that’s why they were appointed. The reason they were confirmed is because the Democratics have no balls – sorry Ladies – I guess I should say guts instead

  5. July 5, 2012 at 02:00

    I appreciate the write up. Given the rabid nature of the clamoring for “states’ rights” these days, some historical perspective is absolutely necessary.

    • July 5, 2012 at 07:49

      I agree with you completely and most of these problems would end if the 11th Amendment were abolished because in actuality and when you face many of these issues in Court it always comes down to the way Law was mutilated to accommodate the 11th Amendment. But what I said in reply to the Sanford comment above – that the US Const is one step up from feudalism – which is essentially what the anti-federalists were – viz., the Landed Gentry, the slave mongers, those opposed to The Banksters and hard money, which Jefferson &co pandered to. In the proper historical context they were indeed the Conservatives, which the US Const expressly proscribes; and the revolutionaries of that time were Capitalists – read the Manifesto even Marx concedes that. And when these persons in present time attempt to superimpose past statements or whatever to present situations, well that is the perfect example of bad history, which any historian will tell you. The thing that these “federalist society” people can’t comprehend is that all of this 18th Century stuff precluded the massive Labor Importations necessary for the Industrial Revolution which has served to entrench the class struggle between the Bourgeois (those with production property) and the Proletariat (those at their mercy for Our very subsistence). Possibly the ultimate mutilation of history in this regard is the Democratics Romanticizing Labor as if it’s some Holy Christian thing. There’s nothing Romantic about it, in the US it’s a life of indentured servitude and debt in service to business. That sort of situation did not exist back in those days as the status quo for the greatest number, at least not here (the US) so you can’t take the words of people from a time when such situations did not exist in order to justify them now: but these GOPstapo freaks and the Democratics too do it all the time and I truly believe they do it because they’re truly unremarkable persons. They are largely the product of what Brennan described in his dissent in FCC v Pacifica – that if you make a society that is only safe for children then you will produce a society of weak minded adults, which has already happened. The prime reason this is never discussed is because of anti-communism and sexual repression, there is no Left. It’s not allowed. Sex is now just another commodity. And quite simply? There is veritably no other way possible to explain these things than from a Left perspective and not the Vanilla Left that is allowed by the Democratic-republican single party monolith – which is so far to the Right they’ll have you believe Thomas Jefferson was a Socialist !!

  6. William Jackson
    July 4, 2012 at 21:59

    The article is not asinine it is correct friend of liberty or no Hamilton understood that without the commerce clause strong and effective this nation was not long for this world. however smokie’s reply is i believe truly asinine as it can make sense only if you deliberately misread the founders words.

  7. smokie
    July 4, 2012 at 14:10

    The article is articulate and asinine. Hamilton is no friend of liberty and if he were alive today he would be the chairman of the Federal Reserve. The Framer’s intended LIMITED GOVERNMENT and individual freedom. The writer has confused himself and seeks to confuse the reader; much like the supreme court does with its history of liberty suppressing interpretations of the constitution.

    • F. G. Sanford
      July 4, 2012 at 22:00

      Limited government was what we had under the Articles of Confederation. The whole point of the Constitution was to END limited government. And, for your Tea Party information, the founders were also TOTALLY in favor of separation of church and state. Get a copy of the Treaty of Tripoli, Drafted under George Washington, Ratified by Congress and signed by John Adams:

      “As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Musselmen; and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

      Suck it up and quit whining.

      • Ed
        July 5, 2012 at 03:21

        Wow. So you think limited government is a bad thing and something the Constitution was designed to end.

        Limited government.

        Wow. I can’t even pretend to understand the psychology of a person who welcome UNlimited government.



        • F. G. Fanford
          July 5, 2012 at 11:09

          You can play word games if you want, but deregulation is just a cute way to say elimination of accountability. Limited government is what has caused the financial nightmare we’re in today. Obviously, you are clueless about how things work, or you have so much money you don’t care. We have a totally dysfunctional government, not a limited government. What you want is no government at all, so the plundering of the American people can continue unabated. If you’re in favor of bringing back Glass-Steagall and the Fairness Doctrine, then I’ll agree to limited government. What the Tea Party wants isn’t limited government. It wants FASCISM.

      • July 5, 2012 at 07:21

        The protection of Liberty is a declaration of limited government – Blackstone defines it as ‘the right to do all that the law allows’. The real strict construction doctrine as opposed to “the federalist society” version is that any law in derogation of natural and fundamental rights must be strictly construed hence the application of “the compelling governmental interest test”. And as Brennan had explained in complementary fashion (I think in Owens v Independence Missouri) ‘all laws and Constitutional provisions for the vindication of such cherished rights are to be liberally construed’. In all instances whether it be in England or with the Federal governmental interest or the State governmental interest (cf. US Const Art 1, secs 9&10)the issue is sovereign power. Jay solved that in “Chisholm v Georgia” – “we are sovereigns without subjects” – which the 11th A. (which ought to be abolished) does not change. So it is with US an issue of which power interferes with Our Liberty (Federal or State) and the degree of efficacy we have in vindicating Our cherished rights when and where they are trampled by either (in that regard it’s either “private war” or The Courts). The larger problem as I see it is the economic stratification of society by the government granting de facto or de jure privileges to business over non business individuals and that’s where most of the deprivations arise. So in that regard the issue becomes whom does the Federal or State power protect people or business. Anyone that believes there is equality in this relation is daft, there is no equal protection under the law in this regard, Business clearly has the privilege of “preferred position”. The US Const is merely one step up from feudalism. Communism is the only solution if you want this degree of equality; and the opposition to communism as an indirect assault on this equality serves as the major pretence for State and/or Federal encroachment of Our Liberty (the D-r(s) are always defining Liberty as the American Dream, it’s all business) and why the Fascists seek to limit the potentiality of the commerce clause – e.g., to preclude Central Planning for the benefit of the general welfare rather than the privileged Bourgeois.

  8. Morton Kurzweil
    July 4, 2012 at 14:07

    Has it occurred to Mr. Parry that the explanation is simply that the right wing justices are all Catholic? They represent a background of autocratic training that accepts dogmatic principles as truth based on faith as a form of knowledge.
    Their interpretation of law is based on the proposition that there are two sides to every question and, although one side is good or evil, or another right or wrong, they are ill equipped to interpret law intended to apply to all the people.
    The result has been a consistent and narrow interpretation of law based on those prior decisions that fit into an ideology of elitism. The founders may have expressed extremes of social and religious views, but they recognized the need for separation of church and state, separation of the expression of ideas, and the authority of all the people from the powers of a democratic government.
    The recent attempts to invest common law with divine authority have become the most dangerous subversive attacks on our constitution and have contributed the most dangerous threats to the authority of the people.
    It is one thing to believe that slaves are not people, that corporations are people, or that economic coercion is a sovereign right of a democratic government. It is quite another to make supreme court decisions on such delusions.

    • Trish Purcell
      July 5, 2012 at 00:04

      Please do not blame Catholicism for the arrogance and historical ignorance of Roberts, Scalia, Allito, Thomas, and Kennedy. To begin with none of them show the slightest knowledge or understanding of the social justice teachings of the Catholic Church – teachings which are based on the main subjects of Jesus’ words and actions during his time on earth. These men are either grossly ignorant about their claimed faith or they are so busy promoting their political agenda that they have forgotten to consider the importance of truth and the everlasting consequences of their choices in this life.

      These men are not “Justices” they are political hacks pure and simple. They have destroyed the credibility of the Supreme Court as the people’s last resource for justice. They serve dishonorably in positions that were previously highly respected. It is of some comfort to think they are very possibly damning themselves to hell in the process.

      • F. G. Sanford
        July 5, 2012 at 00:29

        They are political hacks who have destroyed the Supreme Court in the same sense that Eugenio Pacelli destroyed the “social justice” agenda of the Catholic Church with the Reich Concordat in 1933. An honest look at history suggests that, far from being different, they are of the same ilk. They have behaved exactly the way “Hitler’s Pope” did: pursuing a political rather than a moral agenda. In complete contravention of Pius XI’s wishes, Pacelli turned a blind eye to the horrors of the Nazi regime by following the Lateran Treaty with Mussolini and the Concordat with Hitler. A more despicable, morally bankrupt organization organization is difficult to imagine. Not for its acts but for its silence and hypocrisy. The real problem with American government today is that too many religious lunatics with shallow understanding of the issues are consumed with getting their pathetic “two cents” into every issue. Their real concern is making sure everybody knows they believe in hocus-pocus, mumbo-jumbo, abra-cadabra, ooga-booga, or whatever brand of infantile fantasy to which they happen to subscribe. It would be nice if people could stick with the issues instead of tossing in their personal superstitious delusional beliefs.

  9. fosforos
    July 4, 2012 at 12:52

    The very defenders of the “Commerce Clause” as constitutional justification for forcing people to buy defective products (insurance providing coverage far below the standard of every other comparable country) from corrupt monopolies (the “health insurance industry”) have cited at every turn as precedent the fact that this clause was used to justify criminal prosecution against people growing marijuana on their own property for their own noncommercial use. Does Mr. Parry–or anyone else–think that any of the “framers” in Philadelphia or the “ordainers and establishers” (“We The People”) would have ever voted to ratify a document under which George Washington (let along many thousands of other farmers) would be put in jail for a long term as a felon simply because he grew marijuana for his own use? Would Alexander Hamilton have been so contemptuous of the antifederalist warnings if he had suspected that his Constitution would be put to such a tyrannical use?

  10. Betty Harris
    July 4, 2012 at 11:48

    This statement below…

    In their angry dissenton June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

    flies in the face of the desires of Wall Street to privatize social security… would that not “command event those furthest removed from an interstate market to participate in the market”?

    • Eliza
      July 4, 2012 at 12:55

      Well, Betty, I sure think so. But logic such as that is simply no longer applicable in the world of sound and image bytes.

      I, personally, think that eliminating all but print media might really help. Maybe when the grid fails and only those with printing presses can “communicate” with the masses, we will once again have to THINK as we ingest information — and will have it there to re-read for some “second thoughts.” Unless and until that happens, we are living in the bits and bytes world, a world more suited to lying propaganda than it is to reality.

      Radio seemed like such a good thing; television seemed like such a good thing — but there are unintended consequences, and they are not good.

    • John
      July 7, 2012 at 09:52

      What a deliberately misleading argument.

      In that phrase quoted from Federalist 33, Scalia is deftly MAKING HIS POINT. Federalist 33 is about *taxation* – and Scalia is highlighting that this rewriting of the statute to be a tax is a gross overreach of both the commerce clause AND of powers of taxation.

      He ENSHRINES the framers.

      • July 7, 2012 at 10:05

        Leave it to a Republican to twist the truth and then go out of his way to defend the truth twister giving it another totally different meaning.Republoicans always uphold the constitution even when they are trying to destroy it which is most of the time

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