The Right’s Misconstrued Constitution

Exclusive: The U.S. Supreme Court will rule on the right of a corporation owned by abortion opponents to assert its freedom of religion on health insurance, trumping a woman’s choice of birth control, another chance for the Right to expand corporate rights, says Robert Parry.

By Robert Parry

The five right-wingers on the U.S. Supreme Court may soon recognize the “religious freedom” of corporations so that these artificial constructs can then dictate to female human citizens restrictions on the kinds of contraceptives that they can get through their work-place health insurance plans.

That may sound crazy but some court watchers believe that the Right-Wing Five will follow the logic of their “corporations-are-people” theories to this next nutty conclusion. After all, if corporations have First Amendment rights of “free speech” when they are financing political propaganda to influence the outcome of U.S. elections, there is a consistency albeit a bizarre one to extending to corporations the First Amendment’s “religious freedom.”

U.S. Supreme Court Justice Antonin Scalia.

U.S. Supreme Court Justice Antonin Scalia. (Wikimedia Commons Public Domain)

Already unlimited corporate money in campaigns has drowned out regular human citizens in terms of who (or what) has the bigger say in the outcome of elections, so why shouldn’t the religious choices of corporations override the personal and moral judgments of people who work for the corporations?

We’ll get a better sense of whether the Five Justices John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito will make their next leap of logic when the case gets to oral arguments. But whatever the Five do, you can count on them wrapping their reasoning in their claims to be devotees of an “originalist” view of the U.S. Constitution or as “strict constructionists.”

The reality, though, is that the Five’s modus operandi is to reach an ideological conclusion about what they want to do based on their political opinions or partisan needs and then find some legal-sounding language to wrap around the ruling.

See, for instance, their reasoning for gutting the Voting Rights Act, despite the Constitution’s Fifteenth Amendment explicitly authorizing Congress to take action it deems necessary to ensure the voting rights of racial minorities. Somehow the Five intuited an overpowering right of the states not to have their discriminatory behavior so constrained, all the better for Republicans and right-wingers to win elections.

An earlier grouping of the Five found similar excuses for shutting down the counting of votes in Florida in December 2000 to install George W. Bush as President even though Al Gore got more votes nationally and would have carried Florida, too, if all ballots legal under Florida law were counted.

Scalia first issued an injunction to stop the vote-counting because he feared that a tally showing Bush behind might damage Bush’s “legitimacy” once Scalia and four other Republican justices got around to throwing out Gore’s votes and putting Bush ahead; then Scalia’s group devised an upside-down interpretation of the “equal rights” clause of the Fourteenth Amendment to ensure that the votes of blacks and other minorities were more likely to be tossed than those of whites and the well-to-do.

It was clear that these Republican partisans started off with their conclusion — that Bush should be President and thus have the power to appoint more right-wing justices — and then cobbled together some mismatched arguments for a ruling so ugly that they declared that it could never be cited as a precedent in future cases.[For details, see Neck Deep.]

Targeting Obamacare

Though in upholding the Affordable Care Act in 2012, Chief Justice Roberts split off from Alito and his three amigos (Thomas, Alito and Kennedy), Roberts joined in their rejection of the Constitution’s Commerce Clause as the principal support for the law.

In doing so, the Five ignored the clear intent of the Framers to give the federal government’s elected representatives broad powers to do whatever they judged necessary to “provide for … the general Welfare of the United States” and — through the Commerce Clause — the power to regulate interstate commerce, which clearly applied to the health insurance industry.

But to make the right-wing case, Scalia again resorted to legal sophistry and rhetorical trickery. For instance, Scalia’s dissent against the Supreme Court’s narrow endorsement of the Affordable Care Act (based on the government’s taxing authority) pretended that Alexander Hamilton, an arch-Federalist who favored a powerful role for the federal government, would have sided with the law’s opponents regarding their concern about using the Commerce Clause to mandate that people obtain health insurance.

Scalia 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.’” Scalia footnoted Hamilton’s Federalist Paper No. 33.

However, 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 opponents of the Constitution as alarmists who had stirred up opposition to the new governing document by issuing wild-eyed warnings about federal tyranny.

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, Scalia’s dissent did not only apply Hamilton’s comments to the wrong section of the Constitution but reversed their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

Originalist Thinking

Scalia and the Right also misrepresent the actual “originalist” thinking of the Framers. The drafters of the Constitution decided on a system of checks and balances (primarily devised by James Madison) that required deliberate action but gave the nation’s elected representatives nearly unlimited authority to do what they deemed necessary for the good of the country.

But American right-wingers are no more honest about the Constitution than they are about most other things. Indeed, an objective reading of the Founding era’s history reveals the Framers of the Constitution to have possessed a much more robust view of federal government activism on behalf of American citizens and the country than the modern Right wants you to know.

The Framers of the Constitution, after all, were the Federalists, led by the likes of George Washington, Alexander Hamilton, James Madison (in his earlier incarnation as one of Washington’s protégés) and Gouverneur Morris (who was a key drafter of the famous Preamble). This group, which dominated the Constitutional Convention in 1787, were pragmatic nationalists, devising a system that gave the central government all the necessary powers to make the young, sprawling country succeed.

That’s why the Constitution grants sweeping powers to the federal government to “provide for  the general Welfare” and to enact whatever legislation is deemed “necessary and proper” to achieve that and other goals. The language about the “general Welfare” appears both in the Preamble and in Article I, Section 8, the so-called “enumerated powers.” It is an open-ended concept giving wide discretion to the country’s elected representatives.

And that’s not just a retrospective view from the 21st Century. Both at the Philadelphia convention in 1787 and in the ratification fight of 1788, the Framers were opposed by the Anti-Federalists who also perceived the Constitution to be a major concentration of power in the central government. The states went from being “sovereign” and “independent” under the Articles of Confederation to “subordinately useful,” in Madison’s notable phrase.

‘General Welfare’ Clause

As historian Jada Thacker has noted, in the “general Welfare” clause and the “elastic” language of “necessary and proper,” the Constitution put into the hands of Congress and other federal agencies the authority to meet whatever might confront the nation in the future.

“When viewed in light of the ambiguous authorization of the Article’s first clause (which includes the ‘general Welfare’ language), 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.’”

That was precisely how the Constitution was interpreted by dissidents at the Convention. As New Yorker Robert Yates wrote after walking out in Philadelphia:

“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.”

When the Constitution was sent to state conventions for ratification, the Anti-Federalists continued to make their case against the transfer of power from the states to the federal government. In Virginia, leading Anti-Federalists Patrick Henry and George Mason tried to rally opposition by warning plantation owners that eventually the North would come to dominate the federal government and end slavery.

“They’ll free your niggers,” warned Patrick Henry.

Though the Constitution eked through to ratification, the Anti-Federalists did not give up their fight against the governing document. Their strategy changed, however, into seeking to reinterpret it. Rallying behind the charismatic figure of fellow slaveholder Thomas Jefferson, who had been in France during the drafting and ratification of the Constitution, the Anti-Federalists sought to constrain federal powers by insisting that the plain language of the document didn’t mean what it said.

This reinterpretation of the Constitution spearheaded by Southerners fearful of the eventual loss of their massive investment in slavery explains the extraordinary bitterness of the battle between the Jeffersonians and the Federalists in the 1790s.

Ultimately, due to Federalist missteps inherent in the complexity of setting up a new government  mistakes skillfully exploited by Jeffersonian propagandists Jefferson prevailed in developing extra-constitutional theories like the right of states to “nullify” federal laws or even secede. Jefferson defined his reassertion of states’ rights as “strict constructionism” but it was clearly not what the original Framers had intended in 1787.

However, as President, even Jefferson adopted the “pragmatic nationalism” of the Federalists when he justified buying the Louisiana Territories from France and imposing a trade embargo against European states.

Madison, who shifted his allegiance from the Federalists to the Jeffersonians (and thus saved his political career among his fellow Virginian slaveholders), also embraced more expansive federal powers after nearly losing the War of 1812. To help fund the government and build a professional military, Madison set up the Second Bank of the United States before leaving office in 1817. (Treasury Secretary Hamilton had created the First Bank of the United States under President Washington.)

Though defeated politically by the early 19th Century, the Federalists — or at least their view of the Constitution — prevailed as the central government took on more and more responsibility for building the young and expanding nation. Ironically, too, the warning from Patrick Henry and George Mason about the fate of slavery also turned out to be prescient. Eventually, the North did move to eradicate slavery at the end of the Civil War.

Then, in the face of the Great Depression in the 1930s, President Franklin Roosevelt again tapped into the “pragmatic nationalism” of the Federalists, enacting wide-ranging social legislation to provide for the “general Welfare.” The Federalists’ Constitution  written so future generations could deal with unanticipated challenges threatening the nation’s well-being continued to prevail through the 1960s and into the 1970s.

Continued Resistance

However, the Right never abandoned its crimped and revisionist interpretation of the Constitution, that it didn’t empower the federal government to do what the words of the Constitution said. Especially, in the South, white supremacists continued to insist on the extra-constitutional theories of “nullification” and on state “sovereignty,” though it was eliminated when the Articles of Confederation were scrapped in 1787.

Though not based on a literal reading of the Constitution’s words, the Right’s revisionist interpretation gained traction because of the increased power of right-wing propaganda and because the American Left generally disdained the Constitution for other reasons, its defense of property rights and its compromises with Southern slaveholders.

So, instead of the Right’s interpretation being viewed as make-believe, many Americans came to see the Right as defending the Founding document and liberals and the Left as violating its principles. Justice Scalia, in particular, has pushed this notion that he represents the “originalist” interpretation of the Constitution though he clearly doesn’t. He really is just a right-wing ideologue who passes himself off as a legal theorist.

But that is the way the Right has rolled when it comes to the Constitution and the Federalist Papers, whose primary author and creator was Alexander Hamilton. The right-wing ideologues cherry-pick a few quotes from the Federalist Papers and twist whatever words might be useful in the Constitution — and then count on the mainstream news media to shy away from any serious debate over the “complexity” of the constitutional history.

With such legal “scholarship” prevailing, it shouldn’t come as a total surprise that today’s Supreme Court Five might end up ruling that a corporation’s “freedom of religion” trumps the religious and moral beliefs of actual citizens. Whatever it takes to undermine Obamacare!

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and For a limited time, you also can order Robert Parry’s trilogy on the Bush Family and its connections to various right-wing operatives for only $34. The trilogy includes America’s Stolen Narrative. For details on this offer, click here.

6 comments for “The Right’s Misconstrued Constitution

  1. shirley Smith
    December 3, 2013 at 01:24

    I agree, we cannot have a true Democracy with a right wing Supreme Court. By all means, we need to impeach them. I have never fully believed in this court and lifetine terms. Bush presidency proved that.

  2. November 30, 2013 at 06:11

    With a decade of experience prosecuting civil rights cases in federal court, I can say authoritatively that there is no sympathy with humanity and no integrity in the judiciary. They are truly the autocratic advocates of gold and legal scamming of all kinds, and sit in judgment of themselves, a right-wing gang operation and nothing more.

    This is because the Constitution does not have effective checks and balances, especially against the judicial branch. There were only twelve judges then versus 900 today, and the delegates of the Constitutional Convention apparently thought that with their small numbers, and executive branch control of judicial pay, the judges would behave. The Constitution only provides that judges shall serve “during good behavior” without defining that or providing any recourse. So the judicial branch invented the Judicial Conference to regulate and judge themselves, and of course it merely exonerates them.

    The checks and balances of the Constitution are poorly designed, really a first try at a solution to a problem which did not interest succeeding generations enough to improve the method. But the underlying problem is its lack of protection of democratic institutions and mass media against control by economic concentrations, which did not exist when it was written. That oligarchy has now replaced democracy, whose institutions are maintained in form only to provide a veneer of legitimacy. Any close look at their operation shows the deception which rules the nation.

  3. F. G. Sanford
    November 29, 2013 at 20:55

    Given that Justice Scalia (Shariah?) looks just like the barber I went to as a kid, I can’t help but amalgamate the two in a kind of ideological synthesis which merges the wisdom of both men. Joe was about the same age, so he must have accumulated a similar number, if not exactly the same kind, of personal experiences upon which to base his observations about the feminine condition. He was fond of insuring that his keen insight was consigned to the next generation for safe-keeping, mainly through the captive audience of teenage boys. Joe was an expert on, as Mel Brooks might have called it, the “woo woo”. He never tired of talking about it, and in typical Ronald Reagan fashion, repeated the same vignettes over and over – never remembering that his audience had heard them before. As a kid, I didn’t recognize the symptoms of premature senile dementia. The Reagan presidency changed all that. Joe’s expert knowledge of gynecological procedures included all kinds of remedies, like “chasing out the squirrels with a broomstick”, or “putting in a ham and pulling out the bone”. He had a particularly shocking procedure in mind when Jackie Kennedy married Aristotle Onasis. I’ll leave that one to your imagination. Joe was a World War II Veteran, a faithful member of the church, a patriotic American, and a beloved member of the community. Aren’t they always?

    Obamacare and how it is funded is a revenue issue. Medical procedures, drug regimens and diagnostic decisions are purely medical matters. We are witnessing another legal deception based on false equivalence, much like the choice between “privacy” and “security”. That ‘The Court’ can rule on funding should not imply that it can determine treatment. That would be like Joe the barber practicing gynecology. No doubt, Joe would conclude that fertility is normal and needs no treatment. Though he’d never admit impotence, Joe would conclude that it’s a medical condition requiring treatment. Other than looks, I can’t say for sure what else he had in common with Justice Scalia. But everybody in town figured Joe was impotent. The same disease is at the heart of America’s collapsing sense of self-respect. Joe the barber has become our moral compass: the corporate legacy to future generations. When the Koch brothers and their Wall Street pals offer you a choice between Chris Christie and Hillary Clinton, better ask yourselves, “is this the ham or the broomstick”? If Joe the barber has his way, the winner will be Jeb Bush, and Reader’s Digest will publish “I am Joe’s Viagra”. You heard it here first, folks.

  4. Evan Whitton
    November 29, 2013 at 19:43

    Just get them impeached

  5. Morton Kurzweil
    November 29, 2013 at 16:34

    The First Amendment protects the freedom of religious expression by prohibiting the government from making any law respecting the establishment of a religion.
    SCOTUS has ignored this fundamental principle by equating the people with corporations. This is the product of the personal beliefs of individual Justices of the court, not surprisingly, Catholic Justices, who apply religious training to secular law.
    There are as many beliefs as there are individual citizens. It is this fact which makes us equal, and this fact which requires justice to avoid any influence of religion in interpreting the laws of our democracy.
    What any individual believes has no bearing on the rights of others. We are in great danger from the Court and subversive groups who attempt to apply their personal morality on the interpretation of secular law. The individual citizen is the supreme authority in his beliefs. The individual holds that authority because everyone has the right to free expression of beliefs that do not impose restrictions on the beliefs of others. No religion or religious organization has the right to impose personal moral or ethnic codes of behavior on anyone.

  6. rosemerry
    November 29, 2013 at 14:13

    First, of course, the fact of having a million lawyers in the USA yet POTUS choices provide the nation with “people” like these five as Supremes is mind-boggling.
    Second, if corporations are people, why are none of the big banks which have committed HUGE fraud to the detriment of millions of us being prosecuted? The latest interview with Bill Black (UMKC prof.) on the Real News Network shows the enormity of the situation.
    Thirdly, why are Americans so obsessed with sex and drugs????!!!!!
    Privacy of women’s lives was the reason for Roe vs Wade, and contraception is not even abortion. What is the matter with these men??
    (RATS and Kennedy.

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