Posted on 10/02/2001 9:02:01 AM PDT by tberry
Edited on 07/12/2004 3:47:34 PM PDT by Jim Robinson. [history]
Many years ago, I took an undergraduate course on the Supreme Court. Reading several dozen decisions convinced me of two things. First, I had zero aptitude for the law
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The true "libertarian" types were Jefferson and other Anti-Federalists. They thought the Articles of Confederation were sufficient, and if we had to have a constitution it had better have some very, very strong protection for individual liberties. Thus they fought for the Bill of Rights which the Federalists claimed were unnecessary. They said that if the federal government adhered to the constitution, an individual's rights were protected, and a Bill of Rights would be redundant.
That is the primary reason for the Federalist Papers. The Anti-Federalists were writing letters to newspapers saying that the proposed constitution gave the federal government too much power. Madison, Jay, and Hamilton wrote the Federalist Papers to counter those arugments.
Unfortunately, the predictions of the Anti-Federalists turned out to be pretty accurate.
Even that interpretation would be better than the one they are using now. However, you have to remember that the supreme court that made that decision was the one stacked by FDR while trying to get all his TLAs passed. Under this interpretation, every one of Roosevelt's programs were wholly constitutional.
I, personally, like Madison's interpretation in Federalist #41. After all, he was the one who wrote the dang thing.
The Constitution was indeed meant to ensure a government that had limited and specific powers. Why would they have used a phrase that was not very specific when they did use phrases that were very specific everywhere else? It would make no sense taking it as a whole.
It's saying taxes can be imposed to provide for the general welfare. That provision can only be understood in light of what follows in the section, i.e. the enumeration of powers. Look at it this way: there are two ways of looking at it. #1 holds that it does not grant the power to do anything that might be for the general welfare, and #2 hold that it does. #2 renders the rest of the section pointless, since everything listed is there to promote the general welfare, and makes the Tenth Amendment incoherent, since "powers not delegated to the United States by the Constitution, nor prohibited by it to the states" would be a null set. Not to mention, it makes the author of the phrase a liar, because he directly and very clearly denied #2.
It would seem #1 ought to be considered as having some small advantage. The general welfare can only be understood in relation to the context of what follows. As Madison says, "a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon." Any other view cannot be supported in light of the rest of the document, the words of the authors in other places, or the historical context.
You accused us of being like people who think they know more about medicine than doctors because we hold views on the Constitution unlike those of some lawyers, and here you're dismissing the guy who wrote it out of hand.
Pretty accurate? More like dead-on bulls-eye.
The very fact that this discussion has to occur is substantiation of my argument that this document is not simple and that major differences of opinion can occur over the meaning of punctuation marks and sentence structure. To claim that this is simple is like claiming Faulkner is simple. This is a sentence of hundreds of words and was not written by Madison but by the Committee on Style. I don't have Hamilton's analysis of it handy but believe it to be a little different. He was also on the Committee and probably had more discussions with Madison about the document than anyone else. At that time they were very close allies even friends. So I will assume that Madison's description of the intent of the phrase is correct. However...
1)from my understanding of grammar the phrases enumerating what funds could be spent for are all independent clauses not examples of what is the "general welfare." My belief is that when a list is to be imparted it follows a : not a ; perhaps an English major could clarify this. Maybe usage was different in 1787.
But all those phrases ending with ; seem to be seperate allowable uses.
2)Madison's complaint that it could be construed to allow funds to be used for destruction of the freedom of the press apparently remained a concern with many so the Bill of Rights was adopted to clarify this point. M. and H. did not believe a BofR was necessary.
3)The section "If the different parts...." is not entirely clear to me but I do not agree that it is logical to construe the specified uses as something to "be denied any signification whatsoever." The clauses appear to be independent of each other.
4)Since Madison refers to the identity of language in the Articles etc. it appears that this is a conventional phrase probably not given much thought before its useage. A rhetorical device can come back to haunt you in a document like this when every word is scrutinized.
5)Why is the term even there if it is to be ignored? It certainly has created confusion, controversey and mischief.
6) AJA I have stated elsewhere that I believe that the 10th amendment is essentially meaningless but for noting that State internal police powers are affirmed, judicial, health, etc. it has no meaning that I have been able to discover as regards the relation between the state and the federal governments or that between the state governments with each other. The 10th is significant in its apparent lack of impact on constitutional law. I have challenged those who believe it to be anything other than a rhetorical device to refer me to some case law where it is referenced.
BTW 31 of the 55 conventioneers were lawyers.
Anarchy will not result from not having laws but from having so many that it is impossible to know them all or which apply to what. We need to start doing some serious chopping on every level of government. There are even more ridiculous laws on the local and state books than on the federal. Some are hysterically ridiculous.
The very fact that this discussion has to occur is substantiation of my argument that this document is not simple and that major differences of opinion can occur over the meaning of punctuation marks and sentence structure. To claim that this is simple is like claiming Faulkner is simple.
I agree with you on that. This is a problem I have with nullification. It seems to me there ought to be a final judge of constitutionality, and then, if the states require remedy, or clarification, there is amendment. Maybe that's not perfect, but how many interpretations can we have at one time and still have a workable system?
But all those phrases ending with ; seem to be seperate allowable uses.
My understanding is that semicolons separate independent clauses.
5)Why is the term even there if it is to be ignored? It certainly has created confusion, controversey and mischief.
I think general Welfare was meant to mean "for the good of all the states in general." That's what I take it to mean. As opposed to "for the benefit of certain states."
The 10th is significant in its apparent lack of impact on constitutional law. I have challenged those who believe it to be anything other than a rhetorical device to refer me to some case law where it is referenced.
My mother the lawyer says that's actually how they teach the 10th amendment in law school.
Most of those paralyzed with hysterical fantasies about a permanent military were precisely those who did not serve in the army. For the armchair soldiers the Articles were fine. Those whose lives were on the line had a much different view.
Should you suffer from overly respecting Madison read about his conduct during the 1790s with respect to foreign affairs. His conduct (and Jefferson's oh, hell all the democrats.) was despicable.
How does a stringed instrument solve such problems? Probably very few here even know how to play the guitar -- let alone the viola.
That alone is enough to hold the government to that meaning, regardless of what future actions indicated or arguments were put forth.
I, personally, think that the Anti-Federalists were correct in most of their arguments and that the Constitution gives the government too much power. But I was not present then and the only thing we have is the writings of the folks how were there. We have to use those writings to put meaning to any kind of ambiguousness and hold them to what they promised the Anti-Federalists and the people.
"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449
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