Wednesday, August 29, 2012

Why only the enumerated powers are constitutional

(Evaluating the American Constitution, Part II)

The US Constitution was ratified in 1789, and it took less than a year for its widely understood meaning to be ignored and distorted by power hungry men. The primary culprit was Alexander Hamilton, and the issue was the creation of a National Bank. In 1790, Hamilton introduced legislation into the first ever session of Congress to create a National Bank. The power to do so was not enumerated to the federal government by the constitution; however, it was also not expressly prohibited by it. This provided the first test case of the classic constitutional debate I discussed here: did the constitution list the things government was allowed to do, and ban everything else? Or did it list the things government was not allowed to do, and permit everything else?

President Washington was unsure how to rule on the matter, so he asked each member of his cabinet to write him a letter arguing their side. Treasury Secretary Alexander Hamilton argued in favor of the power; Attorney General Edmund Randolph, Thomas Jefferson, and James Madison argued against it. Ultimately, on April 15th, 1791, Washington sided with Hamilton, and signed the bank bill into law. With this decision, Hamilton pulled off one of the greatest perversions of the constitutions initial intent of all time, and in doing so set a terrible precedent for future generations.

This post will analyze what Hamilton, Jefferson, and Madison had to say on the matter. Then it will demonstrate why Hamilton was wrong, and why the other founders were right.

Part I: Why Alexander Hamilton’s argument was disingenuous bullshit

The full transcript of Hamilton’s letter to Washington can be found here. This post will only dissect the two most important and fallacious quotes. First up is the part where Hamilton takes a page straight out of Machiavelli and argues that the ends justify virtually any means:

“every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.” – Alexander Hamilton

Translation: “Any power which is not expressly banned by the constitution is permitted.”

This view is flawed for many reasons. Firstly, it is directly refuted by the constitution’s text. Even if we knew nothing about the framers intentions from their other writings, it is clear from the text itself that the constitution was ratified with the understanding that the powers of the federal government be confined to those explicitly enumerated. The very first section of Article I states “All legislative powers, herein granted, shall be vested in a Congress of the United States.” (emphasis added). The words “all powers herein granted” clearly specify that all the powers vested in Congress are those included in the document being read. In order for a power to be vested in congress, it must have been granted therein. If Hamilton wanted to justify the creation of a bank, he’d have to either prove creating it falls within one of those powers, or propose an amendment granting that power.

Another reason Hamilton was wrong was that at the time he was making this argument, the Bill of Rights had not even been ratified yet, meaning that there were very few things the constitution expressly banned. The only exceptions were minor rights to Habeas Corpus, bill of attainder, no ex post facto law etc. By Hamilton’s logic this meant the federal government’s power on all other matters was intended by the framers – and understood by the people who ratified it – to be essentially unlimited. That is absurdly false. Rather, the reason the Bill of Rights was not initially included in the constitution was that most of the framers deemed it redundant; if the government is only allowed to do X, Y, and Z, why make an addendum saying that it’s not allowed to do A, B, and C? In fact, Hamilton himself adopted this position during the arguments for ratification, which we’ll get to later. When the Bill of Rights eventually was added, it was not designed as a list of the only things which government cannot do; it was designed as an additional limit on those powers which had already been enumerated, with the understanding that any other power did not need to be limited because it was not allowed in the first place.

In fact, when Hamilton had proposed that the federal government have the power to charter corporations such as a bank in the Constitutional Convention itself, his proposal had been specifically rejected by the other delegates. How, then, can he possibly argue that this bank was meant to be within the powers those delegates granted the constitution? Essentially, he did it by deemphasizing the importance of a constitution at all. His letter continues:

“...all government is a delegation of power. But how much is delegated in each case, is a question of fact, to be made out by fair reasoning and construction, upon the particular provisions of the Constitution, taking as guides the general principles and general ends of governments.”

Translation: 0:11 – 0:16 of this video. (audio only found below)

No, Alex, they’re not more like guidelines than actual rules. The constitution is not merely a general guide, and power is not delegated using the “fair reasoning” of those who want it. You read the words in the constitution, do whatever it says, and don’t do whatever it doesn’t say. If “how much power is delegated” to government were not up to the constitution to decide, then why have one at all? If the powers justified for government could be determined by the “fair reasoning and construction” of politicians, then when do the people get the chance to reject or consent this reasoning? This turns the entire principle of legitimate constitutional government on its head. Politicians need to cite more than the “general principles and general ends of government”, however they define them, to justify their governance. They must cite a specific principle and a specific end which the vast majority of people they govern have specifically consented to in its formal written form.

But perhaps the biggest reason that Hamilton’s argument is bullshit is that he initially refuted it himself, only to flip-flop two years later to serve his personal political desires. Allow me to explain. The constitution was written in 1787. In the immediate aftermath of its public release, there was a great deal of uncertainty about whether the people would accept it. In order to become the law of the land, it had to be ratified by 9 of the 13 states (75%). Many of those states were deeply skeptical about expanding the federal government’s power, both because of the tyrannical government they’d just escaped and the desire to retain full authority over their own states. The framers who had spent all summer crafting this document wanted desperately to convince the people that their handiwork was a good idea. So three of the constitutions most well-known framers set out to write a series of public essays to assuage these concerns. Those essays were published under the pseudonym “Publius”, and are today referred to as the Federalist Papers. Their authors were Hamilton, James Madison, and John Jay. Over the course of the next two years, those men published 85 articles designed to sell the constitution to the voting public and downplay the fear of centralized tyranny.

The man who wrote more of these papers than any other was Alexander Hamilton. This was peculiar, because in the proceedings at the Constitutional Convention itself, Hamilton’s ideas had very little influence on the overall result. Frankly, this was because nobody agreed with him. Hamilton was an unabashed supporter of a monarchy with nearly unlimited powers, while most others at the convention feared those powers. Furthermore, he wanted those powers to be concentrated in the executive, while most others else wanted to separate them. Hamilton advocated such unpopular ideas as lifetime terms for the president and for all senators. Known to disdain the common, poor and uneducated folk, he opposed any democratic input in the government at all. He suggested that state governors to be appointed by the president, and wanted expansive federal powers over the states. On each of these issues, he was the clear outlier. He made only a handful of speeches at the convention, which were mostly ignored. His influence on the document’s result was negligible.

And yet here he was, making impassioned arguments on behalf of a document that included very little of his ideas. The likely reason was that as a proponent of greater centralized power, he felt the constitution was an improvement over the Articles of Confederation. But this put Hamilton in a tricky spot, because the very concerns which were impeding this constitution from ratification were the fear of this heightened federal power. Soon after the document was put forth, a serious public debate began about the constitutions lack of a Bill of Rights. Listing these rights would further limit the powers of the Federal government – something Hamilton undoubtedly opposed. Yet he could not make the argument against these limits without jeopardizing support for the increased federal power. How could Hamilton argue against a Bill of Rights without further stoking the fears that were preventing the Constitution’s passage?

Frankly, he did it by lying about his beliefs. In Federalist #84, Hamilton argued that a Bill of Rights limiting the government was unnecessary, because the government could only wield the powers which were explicitly enumerated anyway! In other words, the exact opposite of what I just quoted him as saying! Not only this, but he was even brazen enough to WARN the people that adding a Bill of Rights may increase the government’s power by opening the door for more expansive interpretations of it. He wrote:

“I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?– Alexander Hamilton, Federalist #84

That sneaky bastard! In order to get his way and expand the federal government’s power during the debate over ratification, Hamilton reassured the people that explicit limits on government power were unnecessary. But once the constitution had already been ratified and he no longer needed such vast popular support, he used the lack of such explicit limits to justify expanding the government’s power, in utter contempt of those same public fears. He warned of politicians claiming more power than was explicitly granted, and then did exactly that a mere three years later! By broadening his interpretation of the constitution to justify his personal pet project, Hamilton directly contradicted the promises he’d made to the people upon ratification. It was a spineless, disingenuous maneuver with zero regard for principle and sole regard for personal gain. It renders his actions illegitimate, because they were not consistent with the terms of agreement the governed consented to. And just as with modern political flip-floppers, it eliminates any hint of credibility from his arguments.

So in addition to being wrong, Alexander Hamilton was a vain, selfish, arrogant, pompous, lying, tyrant-sympathizing dirt-bag. With that said, let’s expand on the correct way to interpret the American constitution’s delegation of power.

Why Jefferson and Madison’s arguments were right

The full text of Jefferson’s letter to Washington can be read here. Once again, I will not comb through each sentence line by line, and will only respond to the important sections. But this time, it just so happens that there are far more important sections to comb through, since practically everything Jefferson writes in this letter is pure gold.

In fact, I’m having difficulty coming up with anything to actually write here, because Jefferson pretty much covers all of it on his own. The argument he lays out in this letter is so masterful, so lucid, so eloquent, so succinct, so compelling and in such lockstep with my own opinion that any additional commentary on my part seems clumsy and repetitive. So for now, I’ll just step back and let him do the talking!

The basic premise of his message was as follows:

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people...’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition…” – Thomas Jefferson

There were three primary places in Article I, Section XIII of the constitution where Hamiltonians tried to step beyond those boundaries. Interestingly, those are the same three places that big-government advocates today have stretched for most expansions of federal power. Those places were the power to levy taxes “to provide for the general welfare”, the power “to regulate commerce…among the several states”, and the power to make all laws which were deemed “necessary and proper” for carrying the former powers into execution. These three clauses are often referred to as the “elastic clauses”, because they are frequently stretched by politicians as justification for non-enumerated powers. But this is faulty logic, and nobody has ever exposed its faults better than Jefferson went on to do in this letter. He articulated the limits of these purportedly unlimited powers so brilliantly that my own words on the matter are not necessary. I could not have found an essay which summarized my constitutional interpretation more accurately if I wrote it myself.

Jefferson debunked the myth of the elastic clauses in the order of their appearance. First, the power “to regulate commerce…among the several states”:

“To erect a bank, and to regulate commerce, are very different acts. He who erects a bank creates a subject of commerce in its bills; so does he who makes a bushel of wheat or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of trade, but as "productive of considerable advantages to trade." – Thomas Jefferson

A bank may facilitate commerce, or create commerce on its own, but it does not regulate the existing commerce of other parties. And even if it did, those parties would need to be conducting their commerce across state/national/Indian tribe boundaries for Congress to have jurisdiction over it.

Next, Jefferson demonstrated why the power to levy taxes “to provide for the general welfare” clause did not allow for a National Bank either:

“Still less are these powers covered by any other of the special enumerations…To lay taxes to provide for the general welfare of the United States…is to say, ‘to lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please….” – Thomas Jefferson

Bingo. If anything which may be argued to enhance the general welfare were authorized, then Congress has unlimited power, because you can make that argument for anything. As Jefferson wrote in his letter, “Certainly no such universal power was meant to be given them. It was intended to lace them up straitly [sic] within the enumerated powers.” The framers rejected this “universal power” by listing not only the purposes which government must pursue (which they unfortunately left broad), but the powers at their disposal for the pursuit (which they specified clearly). As such, the purpose of one authorized power does not authorize any other power just because it serves the same purpose. Jefferson describes this purpose/power dynamic clearly, while Hamilton muddles the two together under the “general principles and general ends of government.”

In this instance, the power to tax was clearly not intended as a catch all for anything they may have forgotten. Otherwise, the entire rest of the constitution would be entirely redundant and unnecessary; if the framers intended that the government could do anything so long as it advanced the general welfare, why bother listing all the things the government was allowed to do? On the contrary, they didn’t want to give the government that flexibility, because they knew that every dictator in history had justified his actions by saying things like “oh, well it will advance the general welfare.” As Jefferson put it, the people did not want their politicians to be “the sole judges of good or evil.” This is how the “general welfare” clause was explained to the ratifying conventions and understood at the time of its passage. It is the only legitimate meaning that can be applied now.

Finally, Jefferson dismissed the “necessary and proper” clause argument without much difficulty:

“The second general phrase is "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the names which are "necessary," not those which are merely "convenient" for effecting [sic] the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any nonenumerated [sic] power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers and reduce the whole to one power, as before observed. Therefore it was that the constitution restrained them to the necessary means, that is to say, to those means without which the grant of the power would be nugatory."

Damn well said, TJ. Half the people who cite the “necessary and proper” clause don’t even remember what comes after those three words. The rest of the sentence is a very important qualifier on that flexibility, as the desired powers must be both necessary and proper (as opposed to necessary or proper) to execute the former powers.

Jefferson also points out that during the constitutional convention itself, the idea to explicitly include the power to erect a bank had indeed been considered and debated. But that idea was specifically rejected, because they knew this power would not be agreeable to the people!

“It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.” – Thomas Jefferson

If the power to start a bank was intentionally left out of the constitution, then how can it possibly be argued to be constitutional? That alone is enough to render Hamilton’s entire argument preposterous.

Now, a big criticism of this letter is that Jefferson himself was not present at the constitutional convention, and did not help in framing the document himself. How, then, could he know what had taken place at the convention? The answer is that his good friend, James Madison, had played a larger role in shaping the constitution than any other single individual, and Madison kept detailed notes about each day’s proceedings. Madison essentially thought up the three-tiered system of government all on his own, and he was the one to present its earliest format to the convention. He was also deeply involved in the negotiations that brought about the final product. As such, he arguably knew more than anyone about how this system was intended to work by those who shaped it. And as it happened, Madison adamantly agreed with Jefferson’s interpretation of the constitution. Observe:

“The powers delegated by the proposed Constitution to the federal government are few and defined.” – James Madison

“[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.” — James Madison

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” — James Madison

“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” –James Madison, 1792

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” — James Madison, 1794

"[T]he powers of the federal government are enumerated; it can only operate in certain cases' it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction." - James Madison, Speech in the Virginia Ratifying Convention, June 6, 1788.

This last quote is perhaps the most important, because the Ratifying Conventions were the place the people consented (indirectly, through their elected officials) to the constitution. Those conventions were the only thing that gave the constitution any more authority than the paper in my printer. And at those conventions, both James Madison (in Virginia) and Alexander Hamilton (in New York) reassured the people that the government’s powers were enumerated, rather than its limits being enumerated. It was with that understanding that the people consented to the document; with any other understanding, they may not have ratified it at all.

The Bill of Rights Clarification

As soon as the bank law passed, popular concerns that the federal government had indeed become too large were reignited. The public clamored for some way to ensure that their rights could not be infringed upon. It was at this time that many legislators came around to the idea of adding a Bill of Rights, which had been floating around ever since the constitution’s initial publication. Madison and Jefferson had advocated one for years, for two main reasons. Firstly, an addendum to the constitution would allow them to clarify the enumerated powers doctrine. And secondly, listing the rights of the people would limit even those enumerated powers, further restricting the government and further protecting liberty.

So, just as he had with the constitution itself, Madison spearheaded these efforts. He submitted the first written version of what would eventually become the Bill of Rights (although his version had 20 changes, only 10 were ratified by enough states to become official amendments). The last state to ratify them was his home state of Virginia, and the Bill of Rights went into effect on December 15th, 1791.

The limits which were subsequently added to the constitution were not, therefore, meant to be a list of the only things government could not do. Rather, they were designed to limit the already enumerated powers, while simultaneously reiterating that only those powers could be wielded. This was made clear in the Bill of Rights through the 9th and 10th amendments.

The 9th amendment reads “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This makes it very clear that just because the constitution lists certain powers as off limits to government does not mean that anything it fails to include in that list is fair game.

Inversely, the 10th amendment reads “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.” This only reiterates the previous conclusion: any power which is not enumerated herein cannot be exercised. Any other power can only be wielded by the state governments or the people acting freely among themselves.

With this Bill of Rights an official part of the constitution, any remaining doubt about the founders’ intentions on this issue should have been eliminated. Twice, three times, a dozen times over it was specified by both the document itself and the people most responsible for writing it. The constitution plainly and wisely stipulates that any power not specifically granted to the Federal government, could not be wielded by that government. Unfortunately, a series of horrendous Supreme Court decisions and political power grabs have trampled on this truth today. But it’s still the truth.

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