Enumerating the Silliness of the Wingers’ ‘Enumerated Powers’ Schtik
Reader Tony Wikrent posted the following comment this morning to my Sept. 20 post titled “Freedom! Liberty! And Being For the Little Guy. As Brought to You By the Conservative Movement.”:
Actually, it turns out that if you are against big government, you ARE against all government. I’m surprised that conservatives who spout the “enumerated powers” argument have not been forced to respond to the historical facts that 1) President George Washington rejected their argument, and lined up with his Treasury Secretary Alexander Hamilton, in supporting Hamilton’s argument for implied powers; 2) first Chief Justice John Marshall, decided in favor of Hamilton’s arguments and rejected the argument used by today’s conservatives and libertarians; 3) Associate Justice Joseph Story, in his Commentaries on the Constitution, argues Hamilton is correct; 4) the Supreme Court has decided a number of times in lesser cases that Hamilton is correct.
But. our immediate concern is the argument that to be against big government is to be against all government. In the landmark case McCulloch v. Maryland: lawyer, William Pinkney, argued before the Supreme Court,
“It was impossible for the framers of the constitution to specify prospectively all these means, both because it would have involved an immense variety of details, and because it would have been impossible for them to foresee the infinite variety of circumstances in such an unexampled state of political society as ours, forever changing and forever improving. How unwise would it have been to legislate immutably for exigencies which had not then occurred, and which must have been forseen but dimly and imperfectly. The security against abuse is to be found in the constitution and nature of the government, in its popular character and structure. The statute book of the United States is filled with powers derived from implication.”
The decision in the case was unanimous, and it was written by Chief Justice Marshall:
“A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”
Marshall was not content to merely render the decision. He felt it necessary to directly discuss and dismiss the arguments in favor of the enumerated powers interpretation, noting “the baneful influence of this narrow construction” which would render “the Government incompetent to its great objects…” In other words, the case indeed, Marshall holds, is that if the national government were encumbered by the enumerated powers argument, it would effectively be powerless to govern, which is, so far as I can see, pretty much the state of things when you have no government at all.
It just amazes me that conservatives and libertarians are allowed to get away with their completely false interpretation of U.S. history in this matter.
The wingers memorize these mantras, cult-like—“The enumerated powers!”; the Tenth Amendment!”; Flat Earth Federalist Paper No. 846!” James Madison! Ichabod Crane!—with no actual understanding of, or detailed background about, what they’re mouthing. What they’re mouthing is nonsense. Pure and (mindlessly) simple. These people really do wing it.
So, so much of the Conservative Legal Movement is an outright fraud amounting to a quiet coup.
I agree with you whole heartedly. Nevertheless it is important to not jump to the conclusion that EVERYTHING the government does is covered by “implied powers.” I’ve seen some supreme court decisions that seemed to me to be breathtakingly specious.
What Marshall et al argue is that the “checks and balances” of the constitution will prevent abuse or at least prevent it from succeeding for long. I am not sure that is any longer the case, given the power of the criminal rich to control both the “press” and the pockets of congressmen and presidential advisors. But in any case those who don’t like some act of congress or the president are entitled to try to change it, and political rhetoric is the way to change policy in a democracy.
So while the wingers are absurd in their basic premise, they are entitled to their say. and even their day in Court.
The Rabid Right may be entitled to their say but that doesn’t mean their arguments, when made in bad faith, should be taken seriously. Most (not all) Right Wing Constitutionalism betrays a moving target which usually ends up being a stand in for “I want the sort and amount of government that agrees with me and only me.”
Matt Bruenig has done a good job of knocking down most of the Libertarian fallacies that underlie a supposedly “narrow reading” of the Constitution. I find it hard to take very seriously people who claim that Madison et al thought they were writing a religious text that was indisputably clear and immutable. There’s little evidence the Founders expected the USA to remain a small country of four million stuffed along the Atlantic seaboard. Quite the contrary, it seems they were smart enough to create a document that left open the possibility of adaptation to changing circumstance.
absolutely. i agree with you, in case it wasn’t clear.
but “only the government i want” is pretty much the way all of us think.
the difference (maybe) between us and the insane right is that they truly believe “what i want” is what god…or the founders…said
while the right is entitled to its say, we are certainly entitled to say they are wrong. it’s called politics. and we are losing. sometimes i think part of the reason we are losing is we tend to get a little self righteous ourselves without ever suspecting that we are..
Yes, Dale, it’s called politics. Or should be. What it should not be called is constitutional law, but that is what they call it.
i agree of course. nevertheless it’s politics that they will call it constitutional law.
what’s scary is when the supreme court calls it constitutional law.
Beverly Mann wrote: “Yes, Dale, it’s called politics. Or should be. What it should not be called is constitutional law, but that is what they call it.”
But it will be called constitutional law in some cases or how else is the US Supreme Court to moderate this big government? In the process they get to impose their own version of the law or constitution.
Once you give them the power, they will do as they wish until they resign, or are impeached. It is the nature of the beast.
Whether you like the outcome depends on the issue and the outcome, but that is not their fault. We give them almost unbridled power and they use it.
It is rightfully called interpretation of the constitution. In this case, we have an activist court and we hear no whining from the Republicans. The court has been ignoring precedent decisions. And no, it is not the nature of the beast, it is the nature of the Kennedy court.
Beverly Mann wrote “The court has been ignoring precedent decisions.”
But nothing in the constitution requires that they honor precedent decisions.
I agree that it is infuriating. It forces everyone to deal with a swirling mass of changing law. Citizens United is awful.
But, as long as we give them the power they will use it.
And the Republicans have had their reasons to whine in the past.
Jim neither do the words “enumerated powers” appear in the Comstitution.
If you back out and examine the Constitution as it relates to the overall system of laws it is amazingly sparse. What It does is to incorporate the whole of Common Law and indeed the statutes pased under the Articles of Confederation by implication. That is the Constitution is not a Code like that of Napolean or Justinian, it doesn’t purport to set out Civil or Criminal Law but instead assumes a pre-existing system.
And that system, the one often known as Anglo-American Common Law, is explicitly established, or rather determined by precedent. As interpreted by judges. Just as it had been for some 5+ centuries in England before being brought to the Colonies.
Hence Marbury vs Madison in the final analysis. It affirms a Constitution under the written Constitution. What English lawyers down to Blackstone and beyond called ‘The Ancient Constitution’ and which largely rules the fundamental aspects of civil and criminal law in 49 States even now.
For example if you examine the Magna Carta of 1215, often considered the basis of Anglo-American jurisdiction, it contains no hint of NEW law but instead a RESTORATION of law trampled by King John.
Let me go further.
It seems to me that the US Constitution was written to give broad powers to each of the three equal branches. It always depended on ‘men of good will’ to exercise those powers in the long term best interests of the country.
In the case of the US Supreme Court the problems began when Chief Justice John Marshall and his fellow justices ruled in 1803 in Marbury v. Madison that the they had the right to interpret the US Constitution. They arrived at that decision by interpreting the constitution!
In the case of the US Senate the problems began in 1806 when the procedural rules were changed to eliminate the the rule allowing the Senate to “move the previous question”. This uncovered the potential for a filibuster where a Senator could talk a bill to death. The threat appears to have first been used in 1841. In 1917 the whole process was formalized to allow cloture with a two thirds majority vote. In 1975 the rules were changed to allow cloture with a three fifths majority vote. A filibuster in the Senate meant that the law could not be passed in spite of any action by the US House of Representatives. So it was legislative gridlock based on a Senate RULE.
In both cases it took a long time before the processes were severely abused. But eventually there were not enough ‘men of good will’ to act in the long term best interests of the country. It had always been a partisan process, but eventually partisanship became dominant.
Fast forward to today and the filibuster is a dominant feature in the US Senate and in the US Supreme Court interpretation is used to overturn a century of precedent with hardly a whisper of justification.
yes, and every Court, Justice, judge, and lawyer bends over backwards to prove his version is backed by precedent.
I agree with Beverly on substance, and I even agree with her need to tell the wingers they are wrong, wrong, wrong,
But there really is no God-Judge we can appeal to. Even Al Gore understood that when he was gored by the Supremes.
What we can do
if it’s not too late
is elect new congresses and new presidents who will appoint new judges who will interpret the law, in the order of time, in ways that are congenial to us.
this arrangement IS the american Constitution
Wonderful comment. (I am a history buff.)
But I find no mention of English Common Law in the US Constitution. So I assume that the judicial system adopted it by using it as precedent.
As such, it is not relevant to our current discussion of constitutionally granted powers.
Jim why is murder a crime in States established under the Constitution? Libel? Theft? Did Kentucky and Indiana etc only have civil and criminal codes when established in the 1810s and 1820s because some judge “adopted it by using it as a precedent” or did it come concurrent with the appointment of that Territorial or State judge?
One way of looking at this is to realize that 18th Century lawyers, judges and legislators equated ‘Common’ Law with ‘Natural’ Law or even ‘Divine’ Law: “we hold that men were endowed by their Creator with—”
But really there can be no question that the U.S. Constitution was layered over Common Law. Which in the terms taught in your basic Undergrad Legal Theory class is “judge made law”. Which while not exactly theoretically correct does in fact establish the basis of Anglo-American Common Law. It is worth mentioning that right into this century American judges relied on rulings by other Common Law judges and vice versa. The explosion of the U.S. Code is clearly a 20th century innovation. There was nothing like it in 1776 or 1789.
“right into this century” of course means “the 20th century” and not his new-fangled new century you kids keep yammering about. If the 20th century was good enough for Joe DiMaggio and Harry Truman it is good enough for me.
(mumble, grumble, damn kids, my lawn, who put that cloud up there!)
Jim, I didn’t write “The court has been ignoring precedent decisions.” Run wrote it.
I think the problem is less that the court is ignoring precedent decisions than that the court is making up legal doctrine, wholesale, out of nowhere and claiming that it’s mandated by the Constitution, while utterly nullifying things that clearly ARE mandated by the Consitution. It’s Never-Never Land on Steroids.
Sorry, I responded to Beverly Mann above, but I was actually responding to your comment.
My point is that the US Constitution gave the US Supreme Court very broad powers. The US Supreme Court sets its own rules and they can change those rules. They are well within the boundaries of their powers.
If we find their rules to be inappropriate then our only practical recourse is to amend the constitution.
The constitution should require 2 branches of the government to overturn a law based on constitutionality. (It took 2 branches to pass the law.) Force the US Supreme Court to get one of the other branches of government to concur before their opinion becomes law.
Otherwise, we leave the Supreme Court with something just short of absolute power and we should stop complaining about it.
On the issue of “Constitutionally established powers” I would refer you to http://en.m.wikipedia.org/wiki/Land_Ordinance_of_1785
This ordinance passed under the Articles of Confederation governed property rights in newly established States prior to its partial replacement by the Homestead Act of 1862. As such it is at the base of the Chain of Title for just about every piece of private property east of the Mississippi and outside the original 13 colonies/States.. And was neither abrogated or affirmed by the Constitution, instead it just remained governing law.. And by the way explicitly established a Federal role in Public Education.
Which makes a mockery of “enumerated powers arguments” against a Federal role in financing education. That role is exactly as old as the property rights asserted by among others my ancestors via Land Grants issued pursuant to this preexisting Land Ordinance.
Want to abolish the Dept of Education pursuant to “Enumerated Powers”? Be prepared to hand over the deed to your Indiana farm. Because that role and that right were established by legislation prior to adoption of the Constitution. And in fact the same piece of legislation.
Where in the Constitution is the right of the government to grant title in property to private individuals? Enumerate for thee but not for me?
Jim as to the assertion that the Constitution “gave the U.S. Supreme Court very broad powers” I defy you to find that explicitly in Article III which established that Court and its powers.
There is a reason they teach Maybury v Madison to H.S. Civics classes. Justice Marshall made some broad and successful and I would argue hugely beneficial claims that expanded ‘original jurisdiction’ in ways that would astonish any King’s Justice of the time. The idea that any single Justice could just abrogate an “Act of the King in Parliament” (which btw is higher than the act of a king in or out of Parliament-because English constitutional theory is weird) was revolutionary. And can’t come from a straight reading of Article III.
It only took one branch, with two houses, to pass the law.
There is a remedy for judges that completely ignore precedent or all legal procedure, well actually two. A judge or judges could be impeached although doing so because one doesn’t like rulings or temperament wanders into politicizing the process (even more).
The second, equally political, is to adjust the number of judges which Congress can do.
It seems to me that the major flaw that the authors of the Constitution didn’t recognize was partisanship that was driven by ideology. The major place this takes place is the abuse of the filibuster, Advise and Consent was supposed to be a check on appointing cronies and characters of ill repute. The filibuster turns it into a purely partisan exercise which takes away much of the President’s choice in nominees (it should be noted that Bork was not filibustered he lost on a floor vote). Requiring a super-majority in any instance not specified in the Constitution seems, well, unconstitutional.
If I could pick one Constitutional Amendment to pass it would be one codifying the rules and procedures of the two houses of Congress. Congress can’t work without a modicum of good faith, if the children can’t play nice then perhaps the answer is to take away their power to make the rules they operate by. At the least the rules ought to curtail the filibuster in the Senate and ensure that the minority in the House has some opportunity to bring legislation to the floor.
Since this is a wish list, I’d also like to see specific committee duties spelled out and a specific schedule that forced Congress to actually come to work. I’d also like to see the elimination of omnibus bills, continuing resolutions, and elimination of the legislative veto in bills (let the executive execute).
Your first comment about “Constitutionally established powers” provides no citation to any part of the US Constitution. I am only concerned with the power of the US Supreme Court and any constitutional limits on that power.
Your second comment:
The first sentence of Article III section 1:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The judicial power of the US Supreme Court flows from that simple sentence.
I see nothing in the US Constitution that gives the President or the Congress the power to overrule the US Supreme Court. (Other than by amendment to the constitution) And I see nothing that compels them to use any particular logic to buttress their rulings.
The Supreme Court is one of three equal branches. Who else should set their rules?
Then in 1803 the court gave itself the power to interpret the US Constitution.
So, the US Constitution means exactly what the sitting Supreme Court says it means. (Frankly I have never seen any evidence of anyone questioning that except maybe President Lincoln where it concerned habeas corpus.)
If you believe that the Supreme Court should have the sole power to interpret the constitution then you should not complain when they rule against you on constitutional grounds.
I was thinking of the legislative and executive branches. (Stated imprecisely I guess.)
I can not imagine a majority of the Supreme Court being impeached over a ruling they made! And President Roosevelt was accused of packing the court and failed, so I don’t expect that would happen either.
Worst case would be a constitutional amendment to correct them and that would probably take a couple of years to be ratified.
Jerry you in turn are reading back meaning into “judicial power” that did not historically exist. There is nothing in that language that allows the Supreme Court to overrule the acts of Congress, that was not the role of Judges under either Common Law or the Ancient Constitution as understood by lawyers of the time.
As to references to “constitutionally granted powers” not being supported by specific passages in the Constitution I am arguing for an absence and not a presence. You can’t point to a void.
I am not certain to what extent the US incorporated English common law. I have not delved into the matter, but I can relate this. About 30 years ago, someone who had looked at the matter said some – some – of the Framers were quite intent on building a republican system of jurisprudence free of the taint of aristocracy and oligarchy, including English common law. He pointed in particular to James Wilson, and said Wilson had written or delivered a speech that explicitly expressed a desire to build a system based on justice, not common law.
I once spent, a number of years ago, the better part of a day trying to find that paper or speech by Wilson,. This would be a few years after Google had begun to scan and upload to the tubez many old books in the public domain from some of the major university libraries. I never did find it, but there are multiples more material that have been indexed since, and a search now might be more successful.
Second, don’t forget that two of the major aspects of English common law were explicitly outlawed by the various states soon after independence. I’m referring to laws of entail and primogeniture. I believable, but do not know for dead certain, that ALL the states enacted Constitutions and statutes abolishing these two precepts of common law.
I’m sure there must be some scholar somewhere that has looked at these matters in detail, and written about them. If anybody has references, I would be most grateful.