On the limits of Congressional power, Federalism, James Madison, and Obamacare
The Supreme Court of the United States is set to rule on the Affordable Care Act of 2010 (“Obamacare”) tomorrow morning at approximately 10:00 am local time , in consistent fashion with other high profile cases traditionally decided on the last day of the Court’s term. While there are many issues that will likely be addressed in the Court’s majority opinion, paramount is the so-called ‘individual mandate,’ a requirement that individuals purchase private health insurance under threat of being fined for failing to do so.
Most of America is, unfortunately, distracted once again by the politics of the issue rather than actively engaged in the fundamental essence of the matter. Nowhere in the major media is the Constitutionality of the individual mandate being energetically discussed in detail and this failure simply serves as a confirmation of the idiocracy that we have allowed our society to become. No longer are Americans heavily invested in preserving their own liberties by maintaining a sharp knowledge of either the roots of our freedoms or the foundation of our government. No longer are the shackles upon the power of government lashed down by neighbors, hand in hand, who while they may disagree upon the mechanics of a legislative solution, can at least agree that such a solution lies outside the power of the federal government to implement. No longer are issues solved at the local level by the people who are destined to be the most affected and suffer the benefits and unintended consequences of the same. Today, all issues perceived to be of national interest are simply assumed to be the job of Congress to solve.
This must stop, lest we kiss our self-governing Republic goodbye and voluntarily place upon ourselves the chains of national governance, subject not to the will of its electors, whose voices seem to stop at the D.C. beltway, but to the emotional whims of the collective.
The issue concerning the individual mandate is important not because it concerns health care, but rather because it concerns the fundamental limits of Congressional authority. As TBP has previously noted on several occasions, the Commerce Clause has become nothing more than a convenient excuse for expansive legislation in any area our representatives deem necessary, despite its seemingly clear language:
[The Congress shall have power] to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes.
The intention of this clause is clear - in Madison's notes on the Constitutional Convention, the term 'commerce' is recorded approximately three dozen times. In each case, the term is used to mean "trade," not the means or method of manufacture, consumption, or some indirect, influential force that might cause more or less money to move across a state border. The Federalist also makes this distinction quite clearly, to the chagrin of the Progressive Left, with each of five dozen references to "commerce" being limited to direct 'trade' or 'exchange' of goods.
Regardless of the equivocations and obfuscations intended to mask the true intention of the Founders as some sort of big government, tyrannical, power hungry hoard of elitists, the actions and words of these men made their intentions perfectly clear - they were in favor not of no government, but of limited government. A centralized, federal government did indeed have (and continues to have) legitimate responsibilities that could not be handled by the states individually, as George Washington observed in his distaste for the organization provided by the Articles of Confederation, under which he watched his soldiers starve during the Revolution. Tasks such as providing for national defense, a common currency, ensuring fair trade (commerce) between the States, and controlling foreign affairs were legitimate tasks that the individual states could themselves not handle.
Madison made this quite clear when he noted in Federalist 45 ,
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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Madison was not alone in asserting the limited role of the federal government - in fact, both the Federalist and Antifederalist Papers support the position of a government of limited powers (the Antifederalists largely being concerned with expressing the problems of centralized governance and advocating against even the government of limited powers as envisioned in 1791).
There is no broad body of work to support the modern, Progressive claim that the federal government, out of need to provide for the "general welfare" not only can act to provide for the People but must indeed do so. Even the token "big government" supporter of his time, Alexander Hamilton, understood the meaning of the term "commerce" to be restrictive and well defined.
It is precisely for this reason that the Progressive Left must distort the words of the Founders - either by directly doing so or by propagating an alternate, skewed understanding of their words.
Nowhere else have I recently found this to be more clearly disguised under the appearance of honest "investigative journalism" than at Consortium News, in an article which claims James Madison to have been a strong supporter of a broad commerce clause , despite his own words. After a lengthy diatribe focused on the Right's "falsification" of American history, author Robert Parry ultimately (and seemingly unknowingly) boils down his argument for Madison being a strong supporter of centralized government by relying on two pathetically weak sleights of hand.
First, Parry relies on an intentional misunderstanding of the scope of government and falsely claims that the Federalist support for centralized regulation of commerce and other enumerated powers was akin to support for a domineering, all powerful government which could and should legislate in any area it pleased. This is patently untrue, as any honest observer (or causal reader of the Federalist Papers) can plainly determine on their own. Advocating a specific few enumerated powers to be taken out of the hands of the states is hardly an advocacy for an all powerful national government, even though it was a drastic change from the ragtag band of independent Republics that existed under the Articles of Confederation.
Second, Parry cites Madison's own words to bolster his claim that Madison was an advocate for large central government. While it is true that Madison intended such things as federal veto power over the states, ultimately the Convention flatly rejected such language, and Madison went along with the compromise. However, Parry then makes the claim that the Right is incorrect in asserting Madison's defense of small government by charging that Madison was actually lying when he wrote the Federalist Papers:
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.”
What the Right ignores, however, is the context of Madison’s comments as he sought to tamp down the fiery opposition to the Constitution. As a skilled politician, he was engaging in the age-old practice of finessing one’s opponent. After all, if Madison really thought the Articles only needed a few tweaks, why would he have insisted on throwing them out altogether? Plus, replacing toothless powers with ones with real teeth is not some inconsequential change.
In other words, James Madison spent countless hours writing 28 of the Federalist Paper and recording the details of the entire Convention in his own handwriting, passionately describing the limited structure of the proposed government just to scam the People into voting for his secret, big government charade.
This is utter bullshit, and for a supposed "investigative journalist" to rely upon it is absurd and shameful.
In addition to his emotional defense of limited government in the Federalist, once elected to the Presidency in 1809, Madison's own actions uphold the Right's claims of his support for limited, structured government. There is no need to read some alternate meaning in between the lines of Madison's words - his behavior was crystal clear.
Upon his veto of a public works bill proposed by the Congress in 1817, Madison noted that the Congress had attempted to act outside of its specifically enumerated powers - hardly an example of a supporter of expansive government:
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.
In other words, Madison rebuked the Congress for acting outside of its legislative authority in an area which was not specifically enumerated in Article 1, Section 8. Why would he do so if he was in favor of expansive government? The charade had already been pulled off - the Constitution had been ratified and a duly elected Congress had passed this piece of legislation. All Madison had to do was quietly sign it and high five the other "secret" Progressives waiting in the next room.
Instead, Madison put his own neck on the line to reject this Congressional power grab and openly castigated the Congress for behaving as if they possessed a "general power of legislation instead of the defined and limited one hitherto understood to belong to them."
Additionally, Madison ultimately supported the addition of the Tenth Amendment (even though he thought it unnecessary) in order to further and explicitly protect the concept of federalism in the language of the Constitution:
I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
Madison then supported the text as ratified:
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.
Why would Madison explicitly support a declaration and entrenchment of federalism if he was, in fact, a supporter of big, oppressive government? To keep the charade going? To "punk" the other Founders? Of course not. The fact of the matter was, he honestly believed in fulfilling the concept of federalism as ratified at the Convention in 1787, even though some of his own ideas were rejected early on. In other words, he was an honest participant in the process, something which Mr. Parry could seemingly spend a lifetime pathetically failing to achieve.
Tomorrow, the Supreme Court is set to rule on the Affordable Care Act, with most observers expecting the individual mandate to be overturned as an excessive federal power grab.
The Court has before it a crossroads in which it must clearly act to preserve federalism and the limited role of the federal government into matters which concern the States and the lives of the People. The only correct ruling tomorrow must state, "The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States."
Anything less would be an unfaithful trampling of the liberties enjoyed by the citizens of the United States of America.
In love of liberty,
The Bulletproof Patriot
Note: The fact that Robert Parry can simultaneously claim Madison's words to support his arguments and assume Madison to have been lying when writing the Federalist Papers makes perfect sense when you zoom out and examine the entire Progressive argument. As far as people like Parry are concerned, it is obvious that Madison was disingenuous in his supposedly false, superficial support for limited government, because the Progressive cause relies upon such disingenuous actions to advance their own cause. That is the primary reason to discard the Progressive argument - anyone who can simultaneously claim Madison's words to support their cause while also claiming him to be a liar is delusional at best, and a deceptive hack at worst.