Constitutional Chicanery
by Tom Schaller
FiveThirtyEight.com
I’m not a constitutional scholar. (N.B.: Protestors and other critics attacking the president ought to take note that he is.) Nor do I want to get into specific constitutional controversies. My aim is to rebut a few of the most absurd fallacies that seem to have gained traction--primarily but not exclusively in conservative circles--about the nature of American constitutionalism. To wit:
First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional. True, the Constitution doesn’t mention health care; but neither does it mention air traffic control. Is the FAA’s safeguarding of our skies from commercial crashes therefore unconstitutional? Of course not. First, there is the matter of the “necessary and proper” clause. And second, just because the Founders clearly meant to avoid the whole business of constitutionalizing specifically policies--see point #3, below--doesn't mean they didn't want the government to have any policies. If they did, why create a legislature?
(More here.)
FiveThirtyEight.com
Where in the Constitution, sir, do you see it authorized that Congress can be involved with "health care," or fund "health care"? I am asking here about the Constitution, not any court rulings. Thank you.This was the content, in its entirety, of an email I received last night from John Lofton, editor of TheAmericanView.com, a friend and supporter of Constitutional Party 2004 presidential candidate Michael Peroutka, and—get this—communications director for an organization called the Institute on the Constitution. We heard a lot from last summer’s protesters and people like Mr. Lofton about the sanctity of the Constitution and constitutional principles. Granting that tea partiers and people who send me silly emails should not necessarily be taken seriously as constitutional experts, there nonetheless seems to be an unusually high level of either uninformed or knowing manipulation of the Constitution in service to pre-ordained agendas.
I’m not a constitutional scholar. (N.B.: Protestors and other critics attacking the president ought to take note that he is.) Nor do I want to get into specific constitutional controversies. My aim is to rebut a few of the most absurd fallacies that seem to have gained traction--primarily but not exclusively in conservative circles--about the nature of American constitutionalism. To wit:
First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional. True, the Constitution doesn’t mention health care; but neither does it mention air traffic control. Is the FAA’s safeguarding of our skies from commercial crashes therefore unconstitutional? Of course not. First, there is the matter of the “necessary and proper” clause. And second, just because the Founders clearly meant to avoid the whole business of constitutionalizing specifically policies--see point #3, below--doesn't mean they didn't want the government to have any policies. If they did, why create a legislature?
(More here.)
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3 Comments:
For starters...
James Madison, the Father of the Constitution, elaborated upon this limitation in a letter to James Robertson:
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. If the words obtained so readily a place in the "Articles of Confederation," and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted.
In 1794, when Congress appropriated $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia, James Madison stood on the floor of the House to object saying, "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, 4 Annals of congress 179 (1794)
"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."
--Thomas Jefferson, Letter to Albert Gallatin, 1817
LOFTON V SCHALLER -- PART ONE
Here's my World Net Daily column responding to some of what the Constitutionally illiterate professor said to me:
Madison vs. Snotty Prof
By John Lofton, Communications Director, Institute on the Constitution
Well, now. As Steve Martin used to say, "Excuuuuuuuse me!" All I did was ask University of Maryland political-science teacher Thomas F. Schaller a simple question: "Where in the Constitution, sir, do you see it authorized that Congress can be involved with 'health care,' or fund 'health care'?" I added: "I am asking here about the Constitution, not any court rulings." And the guy went bananas.
In a snide and snotty e-mail response, Schaller, a columnist for the Baltimore Sun who advocates federal "health-care reform," said my "arguments" were "silly" – though I had not yet made any "argument." He said my question was "absurd" and "irrelevant" and "bogus." He said he always gets "a chuckle" out of constitutional originalists because, he implies, they are hypocrites who invoke the document selectively. He concludes his tirade: "So save me the insinuations that you've somehow caught me in a constitutional-historical trap, because you haven't. You need a more nuanced view of how the Constitution does – and did, from its inception – work. …"
Wow. All this and more billingsgate just because I asked Schaller a simple question about the constitutionality of something he advocates. In any event, in a subsequent article prompted by my piercing question, Schaller writes about what he says are "absurd fallacies" about the Constitution. Remember now, this guy teaches political science – another example of why, literally, I thank God I never went to college.
Fallacy One: "First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional."
Comment: Oooops! The loud, snapping-shut sound you hear is Schaller stepping into "a constitutional-historical trap," causing him to hang there, a rope around one leg, dangling in midair. How so? Because it was none other than James Madison, often called "the father of the Constitution," who said, in Federalist 45, almost exactly what Schaller says is an "absurd fallacy"! Madison says: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." In other words, the Federal Government can do only what the Constitution says it can, what the Constitution "prescribes."
Fallacy Two: "Second, and conversely, there is the fallacy that anything not specifically proscribed by the Constitution is constitutionally permissible."
Comment: Sorry, never heard this one. I've asked Schaller for an example of someone who has said this. Thus far, no reply.
(CONTINUED)...
Fallacy Three: "Too few people wrapping their policy arguments in constitutional claims understand that the founders wrote a short charter dedicated almost exclusively to the design, structure, officers and powers of the government because they wanted to avoid constitutionalizing specific policies."
Comment: To ask Schaller, as I did, where in the Constitution is Congress authorized to deal with or fund "health care" is not a "specific policy" question. It is a question about a general area of activity. And unless you can fit "health care" into one of the categories in Article I, Section 8, Congress may not fund it. Period. End of discussion.
Fallacy Four: "The federal court system is – brace yourself now – constitutional. Mr. Lofton implies that a matter decided in some way by courts must be either unconstitutional, or at least inferior or suspect. Come again? Given the four previous points, the business of the courts is to clarify and fill in constitutional gaps, especially on matters where the Constitution is silent or ambiguous."
Comment: Really? Which founder/framer said the business of the courts is "is to clarify and fill in Constitutional gaps, especially on matters where the Constitution is silent or ambiguous"? Answer: Not one. If the Constitution is to be changed this is to be done by amending it and not by court action. Courts do not make law. Courts cannot unilaterally change the Constitution.
Fallacy Five: "If you want to be a strict constructionist, fine, but be one even when it's inconvenient. Imagine if the Second Amendment read as follows: 'A woman's ability to survive childbearing being necessary to a free state, the right to abort a fetus shall not be infringed.' Now, do you think the anti-choice movement would simply ignore the leading clause and resign themselves to the idea that a woman has an unconditional right to abortion?"
Comment: I want what our founders/framers wanted – for the federal government to obey the Constitution, which specifies, enumerates, prescribes what this is. And, of course, the Second Amendment does not say this. There can never be a "right" to an abortion because abortion is murder – a violation of God's Law. And abortion is the taking of an innocent human life without due process of law, a violation of the Constitution, incidentally. And the overwhelming number of murders-by-abortion have nothing to do with "a woman's ability to survive childbearing." Most innocent babies murdered in the womb by abortion are perfectly healthy, and they in no way pose a danger to the health of their mother. And one wonders what part of "shall not be infringed" Schaller does not understand.
Professor Schaller tells me he cares more about the Constitution than people like me. Perhaps. But, he appears not to have read that which he says he cares about. And he appears to be almost totally ignorant of what our founders/framers intended when they gave us the Constitution.
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