Skeptic,

A couple of points to bear in mind:

The preamble cannot be and has never been used as authority for any legislative action.  Otherwise, an open ended invitation to provide for the "general welfare" is a recipe for totalitarianism.  But as a legal principle, the preamble confers no authority for anything.

Also, I agree with Beech Trees that the Constitution is, at its core, a barrier against government action.  If you look it over, you'll notice that most of the language is written in the negative:  e.g. "Congress shall pass no law..." (1st Amendment); right to bear arms "shall not be infringed (2nd Amendment); No warrant shall issue...(4th Amendment).  The only section of the Constitution which authorizes any action is Article I, section 8, which authorizes Congress to lay and collect taxes, regulate commerce, coin money, et al.  Otherwise, the document says what government cannot do.

Beech Trees, how did you find Tucker's Blackstone?  That's a serious piece of Constitutional jurisprudence.  I knew of Blackstone (the little of which I read in law school I did with droopy eyelids), but not Tucker.

Skeptic wrote on Aug 24^th, 2002 at 3:26am:


Skeptic,

Actually, the wording “general Welfare” in Article 1 Section 8 does not confer any powers either.  This is a common misunderstanding and shows how much the Constitution has been perverted and intentionally misinterpreted for political profit.   The Framers of the Constitution explained quite clearly their intentions and I would direct your attention to Federalist Paper Number 41.  As you may remember, the Federalist Papers were articles published by Alexander Hamilton, James Madison, and John Jay to explain the design of the proposed new government and address the criticisms leveled by the Anti-Federalists who wanted even less government.  In short, when arguing about what the Framers intentions were, you must go directly to the source.

In Federalist Paper Number 41, Madison (the principal author of the Constitution) directly, and at length, addressed the objections raised by those who thought including “general Welfare,” in Article 1 Section 8 would amount to an unlimited license for government intervention.  (Apparently the Anti-Federalists were right on this issue given our state today.)  Madison said these objections were “stooping to such a misconstruction,” and asked: “Why would specific powers be enumerated, if they were meant to be included in the preceding general power?  Nothing is more natural than to first use a general phrase and then to explain and qualify it by a recital of particulars.” Simply put, the powers are specific rather than general. Presently, about 2/3rds of what the government “does” is not authorized by the Constitution. 

As for the Supreme Court, they really didn’t “find” anything regarding general welfare in Article 1, Section 8, rather they abandoned their principles in order to “save” the courts historic structure.  You must remember that for about 150 years, the Court interpreted the Constitution the way the Founding Fathers wrote, explained and intended it.  The dramatic shift in the Constitution’s interpretation happened during Franklin Delano Roosevelt’s tenure as President.  Initially, the Supreme Court found a good amount of FDR’s New Deal legislation unconstitutional and in retaliation, FDR surreptitiously threatened to increase the number of justices in order to pack it with justices who weren’t “strict constructionists.”  FDR’s court-packing threats worked, the justices acquiesced, and the welfare state was born.  Somewhere over the years, these facts have been lost, government largesse has become the norm, and everyone assumes it must be constitutional since the Supreme Court said so.  Our Founding Fathers are spinning in their graves…

In addition to reading the Federalist Papers, you may also want to check out a short article (8/16/00) by economist Walter Williams titled “Could they be elected today?” available at: www.jewishworldreview.com.  Williams speculates that our Founding Fathers would never have a chance at being elected today given their positions against government benevolence and our current contempt for constitutional principles.

AMM wrote on Aug 24^th, 2002 at 7:15pm:


Agreed, although "original intent" doctrine for Constitutional interpretation is a poor method: we simply don't live in the 18th century any more, and interpreting the Constitution exactly as the framers would have would be as out of place today as would 18th century technology.  It would also be out of sync with what the Founders themselves wanted

Regardless, it seems you've already committed a grievous error:  assuming that the Founders were of one mind, and worse, assuming that mind was expressed explicitly and solely in Federalist 41.

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Again, this assumes that the Framers of the Constitution all agreed with the above sentiment.  The Constitution was ratified by vote and the States, after all, not by Madison's dictate.  Other Founders had a different view on the "General Welfare" clause:

"Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirements that it shall be exercised to provide for the general welfare of the United
States."  United States v. Butler, 297 U.S. 1 (1936).

Further, Madison contradicted himself on this topic:  as president, he asked for appropriations to send an expedition to the North Pole, and cited (guess what?) the "General Welfare" clause as justifcation.

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Actually, the above Supreme Court decision cited, United States v. Butler, 297 U.S. 1 (1936), in which the Hamilton-Story interpretation of "General Welfare" being a separate power was found to be the true one by a conservative court, occurred before FDR threatened the Court's structure (which occurred in 1937).  FDR's agriculture legislation was overruled on the grounds that it usurped State powers.

And FDR's efforts were hardly "surreptitious".  He proposed legislation allowing him to pack the Court with his own additional appointees.  The failure of that legislation was his most spectacular legislative loss, and it arguably decreased the authority with which he could enact his New Deal legislation (although his threat did, indeed, cause the Court to begin backing his legislation much more readily).

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And how would you propose we determine the constitutionality of laws if we don't let Supreme Court decisions be the final say?  Perhaps we should simply trust Congress to pass "constitutional" laws?

(Incidently, judicial review was argued for forcefully in Federalist 78, yet it wasn't specifically included in the Constitution.  Ah, the nuttiness of it all.)

Skeptic

Skeptic wrote on Aug 24^th, 2002 at 10:48pm:


Here I must comment rather earnestly that one need not invoke words and phrases like "original intent" or "penumbras" or "compelling interest" when discussing the meaning of the Constitution. The Constitution, imho, is written in quite plain English. I would almost go so far as to say it isn't necessary to study the history of the creation of the Constitution-- so simple and straight forward are the words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And yet, when Congress passes a law, say banning cigarette advertisements, the law is not immediately struck down, because our Supreme Court studies something OTHER THAN the Constitution to decide whether or not the law is Constitutional. Congress shall make no law seems pretty straightforward to this layperson-- so why the hundreds of thousands of un-Constitutional laws now a part of the Federal Code exist is beyond me.

I DO hope you are not making veiled reference to the Constitution being a 'living document', open to the vagaries of the times and the whims of our current politicians. Down that path lay madness my friend.  

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Certainly they all came to the table with their ideas and agendas, but those all melded into the plain language of the Constitution.

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It's indeed a conundrum. IMHO, we have bad Constitutional review because we have bad Supreme Court Justices who were appointed by bad Presidents. This rhetoric won't win me many friends perhaps, as they will immediately make my patriotism suspect at such harsh condemnation. However, the one document I hold above all others, almost to the point of religion, is the US Constitution. What has happened to it is a travesty I think. Any Judge who over rules the plain meaning of the Constitution is, in my opinion, no judge at all, he's a traitor to the oath he swore upon taking office. Phrases like "make no law" or "shall not be infringed" or "retained by the people" or "reserved to" are comprised of everyday words that require no search for "original intent" or "penumbras." 

Thanks for letting me vent,

Dave

Beech Trees,

I was extremely busy today and could not respond to Skeptic's post, but as luck would have it, you did it for me.  You hit every point I was thinking about.  I definitely don't subscribe to the view that the Constitution is a "living" document, and I completely agree that judges who overrule the Constitution's plain meaning are traitors.

When I took my oath as a military officer I swore that I would bear true faith and allegiance to the Constitution as it was written, not as interpreted by the "it takes a village" crowd.  

The argument that the Constitution and the Framers clear intentions are "outdated" (often just because they're "dead, white guys") always seems to come from those with an intense passion for income/wealth redistribution. (And, of course, gun control freaks.)  The America of today is certainly not the America our founders wanted.  Thomas Sowell noted in one of his random thoughts:  "One of the sad signs of our times is that we have demonized those who produce, subsidized those who refuse to produce, and canonized those who complain." 

I was going to stop here, but I feel compelled to include another of Sowell's random and very profound thoughts:

"People who are very aware that they have more knowledge than the average person are often very unaware that they do not have one-tenth of the knowledge of all of the average persons put together. In this situation, for the intelligentsia to impose their notions on ordinary people is essentially to impose ignorance on knowledge."

AMM wrote on Aug 25^th, 2002 at 6:58am:


The trouble is, of course, is that many people seem to find different "plain meaning" in the text

The classic example is the 2nd Amendment.  Let's take a look at the text alone, without any other historical context:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

To me (and many others), the above plainly states that the right to keep and bear arms is directly dependent upon being in a "well-regulated militia".  I would bet a fair sum that, to you, the plain meaning is that "the right to keep and bear arms shall not be infringed", regardless.

So who gets to decide which "plain meaning" is right?

I share your desire for "plain meaning" and simplicity.  The only problem seems to be that we can't agree on it!  Surely, you can agree with me that we need a way to decide which view will be held as the law of the land.  That's just plain common sense, and I, for one, would rather that the "correct view" be decided with as much information and consideration for the ramifications as possible.

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Ironic, then, that you brought in external text (Federalist 41) to interpret the meaning of the Constitution "as it was written".  And it should be noted that my sources for alternative meanings are no less contemporary or authoritative.

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This, of course, is an entirely different debate, one about equal economic opportunity and merit, the proper level of regulation for capitalism, etc.

For the record, I lionize "those who produce".  I would imagine we have different opinions on who those people are, though.  And IMHO it is clearly the moral and economic right of government to enact wealth/income redistribution as it sees fit, especially considering the indispensable part government plays in wealth production in the first place.

... legislators cannot invent too many devices for subdividing property... Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions or property in geometrical progression as they rise. Whenever there are in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. 
Thomas Jefferson (in a letter to James Madison), 1785 

In a society of an hundred thousand families, there will perhaps be one hundred who don't labour at all, and who yet, either by violence, or by the more orderly oppression of law, employ a greater part of the labour of society than any other ten thousand in it. The division of what remains, too, after this enormous defalcation, is by no means made in proportion to the labour of each individual. On the contrary those who labour most get least. The opulent merchant, who spends a great part of his time in luxury and entertainments, enjoys a much greater proportion of the profits of his traffic, than all the Clerks and Accountants who do the business. These last, again, enjoying a great deal of leisure, and suffering scarce any other hardship besides the confinement of attendance, enjoy a much greater share of the produce, than three times an equal number of artisans, who, under their direction, labour much more severely and assiduously. The artisan again, tho' he works generally under cover, protected from the injuries of the weather, at his ease and assisted by the convenience of innumerable machines, enjoys a much greater share than the poor labourer who has the soil and the seasons to struggle with, and, who while he affords the materials for supplying the luxury of all the other members of the common wealth, and bears, as it were, upon his shoulders the whole fabric of human society, seems himself to be buried out of sight in the lowest foundations of the building. 
Adam Smith, first draft of Wealth Of Nations 

Skeptic

Skeptic wrote on Aug 26^th, 2002 at 2:08am:


An interesting take on the course of events leading up to the ratification of the Bill of Rights, as well as the import concerning the word 'expressly' as it concerns the Tenth Amendment. To be honest I have never heard that small anecdote put forth as a reason on which to hang the notion that the Tenth Amendment stands gutted of most if not all meaning or power. My understanding of the events surrounding the suggestion, debate, and final voting down of the notion of adding 'expressly' is very different than yours.

Can we agree that for something to be 'eviscerated', that which is gutted from it must have at one time been a part of it? If we can, then the notion that The Tenth Amendment 'stands gutted of most if not all meaning or power' is an erroneous assertion-- because the phrase 'expressly delegated' never appeared in any version of the Bill of Rights offered up by any ratifying state, nor by George Mason, nor in the proposed amendments offered in Congress by James Madison. Here it might be beneficial to everyone actually taking the time to read this to digest a scholarly commentary on Amendment X by Joseph Story:

This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty. 

When this amendment was before congress, a proposition was moved, to insert the word "expressly" before "delegated," so as to read "the powers not expressly delegated to the United States by the constitution," On that occasion it was remarked, that it is impossible to confine a government to the exercise of express powers. There must necessarily be admitted powers by implication, unless the constitution descended to the most minute details. It is a general principle, that all corporate bodies possess all powers incident to a corporate capacity, without being absolutely expressed. The motion was accordingly negatived. Indeed, one of the great defects of the confederation was... that it contained a clause, prohibiting the exercise of any power, jurisdiction, or right, not expressly delegated. The consequence was, that congress were crippled at every step of their progress; and were often compelled by the very necessities of the times to usurp powers, which they did not constitutionally possess; and thus, in effect, to break down all the great barriers against tyranny and oppression.--Commentaries on the Constitution of the United States, Joseph Story. Boston, Hilliard, Gray & Co., 1833.

As luck would have it Mr. Story squarely addresses the 'expressly' issue later in the commentaries with the following thoughts (to which I wholey subscribe):

It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgment of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted.[my emphasis] All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved. The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words, or the sense of the instrument. Stripped of the ingenious disguises, in which they are clothed, they are neither more nor less, than attempts to foist into the text the word "expressly;" to qualify, what is general, and obscure, what is clear, and defined. They make the sense of the passage bend to the wishes and prejudices of the interpreter; and employ criticism to support a theory, and not to guide it. One should suppose, if the history of the human mind did not furnish abundant proof to the contrary, that no reasonable man would contend for an interpretation founded neither in the letter, nor in the spirit of an instrument. Where is controversy to end, if we desert both the letter and the spirit? What is to become of constitutions of government, if they are to rest, not upon the plain import of their words, but upon conjectural enlargements and restrictions, to suit the temporary passions and interests of the day?

It's my understanding that the phrase 'expressly delegated' was contained within the original Articles of Confederation, but such a phrase so hamstrung proceedings that progress was ground almost to a halt, and, as noted above, Congress had to usurp almost from the beginning in order to proceed.

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Well, it goes without saying that I feel many of the expansions of power of the Federal Government found to be Constitutional are nothing of the sort.

I'll offer up my thoughts on the Ninth (and the Constitution's definition of The Militia) when time allows.

Dave