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.