Wrecking the Constitution


Mike Maharrey
July 14, 2013

In an article published on AlterNet, Jada Thacker demonstrates just how wrong these folks are. By tearing the words out of their historical context and intended legal framework, Thacker managed to cobble together a view of the Constitution the exact opposite of its actual meaning.

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

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

Thacker goes off the rails in the very next paragraph, appealing to the preamble to prove the unlimited powers of the the federal government.

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

I imagine a person lacking any understanding of legal rules of construction would nod in agreement. But a preamble does not serve as a source of authority. It merely defines the general purpose of the document. Take general welfare, for instance. The use of that phrase in the preamble does not imply the federal government has unlimited authority to do whatever it wants to promote the “general welfare” as defined by federal functionaries. As Madison said, that “would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” The general welfare clause simply lets the reader know that one purpose of the powers delegated is to promote the general welfare. It does not delegate, any actual authority.

The same phrase appears in the preamble to article I Sec. 8, enumerating the powers of Congress. Thacker once again tries to make the case that the appearance of that term implies unlimited authority to do whatever lies within the “general welfare.” Alexander Hamilton called this notion absurd.

This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

Hamilton wrote that in Federalist 83. Of course, Thacker will counter that I am pulling quotes out of context to make my case.

“Limited government” advocates are fond of cherry-picking quotes from  The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the  Anti-federalist Papers unsurprisingly never gets a glance.

Thacker goes on to quote Robert Yates, proving that the federal government was meant to exercise unlimited power. Again, those ignorant of (or simply ignoring) the ratification debates would likely think Thacker just landed a haymaker on the chin of those crazy “right-wingers.” Historical context reveals the fallacious nature of the argument.

The anti-federalists opposed ratification because they believed the new government would exercise the kind of unlimited power people like Thacker adore. Yates’ quote reflects this fear. But supporters of the Constitution SWORE they were wrong. Even a cursory reading of ratification era history reveals the debate was never: do we want a federal government of limited power or one of expansive power. Virtually everybody agreed the desired model was the general government of limited power that Madison described in Federalist 45. The debate revolved around whether the Constitution would create that government or not. The federalist argument won the day. In other words, the representatives of the people — the ratifiers — approved the Constitution based on the assurance that it was indeed creating a federal government of limited powers the people insisted on. Quoting a constitutional opponent whose argument failed to carry the day hardly qualifies as proof that the feds can do anything they want.

Thacker continues in ignorance, asserting that the necessary and proper clause provides any additional power the feds might lack. Again, Thacker fails to consider the meaning of “necessary and proper.” It was a legal term with a specific meaning — and that meaning did not include bestowing additional authority on the government. Basically, it allows an agent to exercise powers not explicitly spelled out in the legal document, but necessary to exercise the specific authority given to him.

For example, let’s say I write out a contract granting you the authority to run my grocery store. I don’t need to specify that you have the power to pay a guy to clean the floors, or hire a mechanic to fix a freezer when it goes down. Those powers are “necessary” and “proper” to running a grocery store. But necessary and proper powers don’t give you the right to give away all of the food items in my store and turn it into a pornography shop. Once again, Hamilton attests to the limits of federal power. Keep in mind, this was one of the founder most supportive of strong national authority.

“It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses [necessary and proper and the supremacy clause] were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.

Thacker goes on for seven web pages. I could write a book debunking the false assertions, legal ignorance and historical revisionism. But you get the idea. Thacker counts as one among many, desperately trying to ring meaning out of the Constitution that never existed. As Tom Woods pointed out, these leftists really should just give it up.

If the Constitution said what the Left wanted it to say, they would be insisting on its strict interpretation. The fact that leftists instead spend their time assuring us that its meaning has evolved, that we can’t live in the past, that the Constitution has to get with the times, proves that they realize the original text is not compatible with their various schemes.

Read more