Constitutional Interpretation: Not for the Weak of Mind

This article at AlterNet, claims that the 10th Amendment, which states, “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,” doesn’t mean that the Federal Government has limited powers. Sounds like someone’s a little confused? I’d day so. It probably doesn’t deserve much of a response, but it’s so wacky I felt compelled to write something.

First, Jada Thacker (who, no surprise, has a doctorate degree in Education, not exactly a Constitutional scholar) says:

The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”… If the object of the Constitution were to establish “limited government,” its own Preamble must be considered a misstatement.

Last time I checked, a preamble has no legal weight to it; it only sets out the purpose of the document. Sure, the preamble doesn’t state that the purpose of the document is to establish a limited government; but then, why would it? A limited government, in and of itself, is not an end. A limited government is the means to an end; ends which the preamble delineated. Remember, we do not buy a shovel for the shovel itself; we buy a shovel because we want a hole dug. For the Constitution, the shovel (means) is limited government and the hole (end) is “a more perfect Union”…etc.

Next, Dr. Dolittle, I mean Dr. Thacker, states:

Article I establishes Congress, and Section 8 enumerates its powers…“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States…”No attempt is made here, or at any other place in the Constitution, to define “general Welfare.”

He states further that the Elastic Clause means:

Congress shall have power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Thus the type, breadth and scope of federal legislation became unchained. When viewed in light of the ambiguous authorization of the Article’s first clause, the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses – restated in the vernacular – flatly announce that “Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.”

But this begs the question: if this clause gives the Federal government unlimited power to make any laws in the general welfare of the people, then why did the Constitution list anything else? Why did the document not just say simply, “Congress shall have the power to make any law benefiting the general welfare of the United States?” Naturally it is because the document set out a government of limited, enumerated powers. Also, the General Welfare clause is declaratory of what purposes Congress may use its taxing powers for. Read Section 8 again with this in mind, and you can see the clear error in thinking. “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to…provide for the common Defence and general Welfare of the United States.” In this light, it is a delineation of the taxing power, not a sweeping grant of power. The General Welfare clause was seen as a limit on the taxing power. If you want to gain a clear understanding of the Original Meaning of the Necessary and Proper Clause, as well as the General Welfare Clause, this paper by Randy Barnett should lay any question about its meaning to rest:

According to Madison, Congress could use taxes to provide for the common defense and general welfare only when exercising the other powers that were enumerated in Article I. The taxing power could not be used to pursue any end that might be thought conducive to the common defense or the general welfare. Why not? “To understand these terms in any sense, that would justify the power in question, would give to Congress an unlimited power; would render nugatory the enumeration of particular powers; would supersede all the powers reserved to the State Governments.”

The Necessary and Proper Clause Dr. Evil completely misinterprets. The Necessary and Proper Clause specifically limits itself to those “foregoing Powers,” ie. specifically enumerated. It then proceeds to list the powers Congress may exercise. It is blundering drivel to assert that these two powers together render the whole enumeration of powers null. Again, why go through the trouble of enumerating all the powers of Congress if they are infinite and indefinite?


Dr. House next says that:

“Limited government” advocates are fond of cherry-picking quotes from The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the Anti-federalist Papers unsurprisingly never gets a glance.

The point of picking quotes from The Federalist Papers rather than the Anti-federalist Papers is because the writers of The Federalist Papers were intent on explaining to the American people exactly what the Constitution’s provisions meant.

The Anti-federalist Papers is a collection of writings from those people who opposed the Constitution based on how they thought certain provisions could be misconstrued, or how the government was going to lead to monarchy, aristocracy, etc. Although the Anti-federalist papers proved to be strangely prophetic (and I would have certainly agreed with them if I was alive contemporaneously), the Anti-federalist papers were not what the provisions were intended to be. If we want to actually understand the provisions of the Constitution we need to go back and investigate the debates on the Constitution. The Anti-federalist papers, although great for understanding the conflict between the Federalists and Anti-federalists, are not a relevant source for understanding the Constitution’s meaning. The choice between choosing between the two sources is a choice between what the Constitution means versus what the Constitution’s provisions could be (and in many senses were) construed to mean.

The author continues:

The Tenth does not say that important powers remain to be delegated to the United States. It merely says that powers “not [yet] delegated” are “reserved” to the states or the people. This sounds like a terrific idea – until we realize, of course, that all the important powers had already been delegated in 1787, four years before the Tenth Amendment was ratified.

As we have seen, the first and last clauses of Article I, Section 8 made the Tenth Amendment a lame-duck measure even as James Madison composed its words in 1791 – and so it remains today. The sweeping powers “to make all laws necessary and proper” in order to “provide for the general welfare,” had already been bestowed upon Congress.

Again, since we have made it clear that the Necessary and Proper Clause and General Welfare clause do not confer sweeping powers onto the Federal Government, the author’s point on the Tenth Amendment is moot. Nothing in the history of the Constitution or the Tenth Amendment suggests that the Tenth Amendment has no meaning; the only thing ever suggested about the Tenth Amendment is that it is superfluous. It is superfluous in the sense that it was common wisdom at the time that unless a power was specifically granted, the government does not have that power. It means that without the Tenth Amendment to the Constitution, the Constitution would have exactly the same meaning.

The very essence of the Constitution was that certain powers were enumerated in it and that the Federal government has only those powers; most people believed the Tenth Amendment was stating what was already true. Also then, in some sense, the Tenth Amendment may have been said to hurt this doctrine because by feeling the need to add this Amendment, the assumption would be that the government would have all powers, even those not specifically enumerated, and that is why the Amendment was needed.

He mentions that:

Gov. Rick Perry and his far-Right cohorts who believe a state may reclaim power by withdrawing its consent, in effect repossessing their previously delegated power through state legislation…

But a close re-reading of the Tenth’s wording nixes such reasoning. Oddly, the Tenth Amendment does not say the states delegated their powers to the federal government – although it may be argued that it probably ought to have said so. It says “The powers not delegated to the United States by the Constitution … are reserved to the States. …”

Thus, according to the Tenth Amendment, the Constitution itself delegated the power to the federal government. Superficially, the ending statement alone that the Constitution itself delegated power to the federal government is totally inane. The Constitution is not a person; it cannot act. Taking his statement at face value, how would the Constitution obtain any powers to delegate to government in the first place? It is not as if the Constitution magically appeared with some powers to grant. Simply: the States, who were the parties to the Constitution, delegated their powers to it.

I don’t have any idea where he came up with his absurd logic in the first place, however, even on the author’s own terms, it doesn’t support his argument (I find it amusing that he talk’s about a “close re-reading of the Tenth” Amendment, when it doesn’t appear he actually did).

The author next starts talking about how by ratifying “the Tenth Amendment, the American people endorsed the legal fiction that the Constitution – not the original 13 states, or “We the People” – authorized the power of the United States because the Constitution itself said so.” I’m in utter disbelief as to the logic behind this at all; it sounds like a college student’s ahistorical attempt to interpret the Constitution in some strange, novel way.

Moving on, another oddity in the article is the statement “The states and the people may amend the Constitution. But they may not do so by nullification,” but who would ever characterize nullification as “amending the Constitution?” That alone suggests a total lack of any understanding about nullification generally. Nullification is totally unrelated to the amendment process; it is simply a tool that theoretically would be used when Congress enacts unconstitutional laws under which a State wouldn’t be obligated to comply with the law since any law enacted in violation of the Constitution is null and void.

“Dr.” Thacker then talks about the paucity, or lack, of guarantees of specific individual rights in the Constitution. It is certainly true that, aside from a few iterations, there aren’t many enumerated rights mentioned in the Constitution for the people. But why is this? If the author hadn’t been so busy contradicting history and making up ridiculous theories, he may have noticed that the Constitution was designed so that all rights that the people possessed did not have to be enumerated. If the author actually understood the Tenth Amendment, it would become clear that the Constitution reserved all these rights the people. Thacker is so busy trying to read between the lines of the Constitution for some non-existent hidden wisdom that he is ignoring the obvious.

It was even thought that a Bill of Rights would be dangerous to include in the Constitution because it would, again, compromise the principle that all the rights not specifically granted to the Federal government by the Constitution were reserved to the States and the People.

Thacker then notes that the word power is mentioned much more often than the word right. As I’ve been saying all along, the Constitution was meant to be a limitation on government, not a declaration of personal rights. Thus, the word power is going to be mentioned a lot more because in order to define the boundaries of government, we must enumerate the powers that the Federal government is to possess. The undertaking of trying to list all the “rights” possessed by individuals would be arduous and could never be exhaustive. It is much easier to simply list the powers of government and reserve everything else to the people. 

He goes on to say, “The way the First Amendment is worded does not enumerate these as positive rights that people possess, but rather as activities the government may not infringe upon.”

First, the author confounds the definition of positive and negative rights with positive and negative liberties. A positive right is a right that one can possess only by laying claim to someone else, ie. we cannot have a positive right of healthcare unless we lay claim to someone else’s ability to provide it for us. A negative right is one that can be exercised without any reliance on other individuals, ie. we can exercise our freedom of speech simply by speaking, without the aid of another. What the author is actually talking about is positive and negative liberties. There ultimately is a difference between positive and negative liberties, but it has no bearing on whether or not something is a right, so I need not go any further. He finally makes a mention that a Bill of Rights was thought to be potentially dangerous by Alexander Hamilton, but doesn’t realize the implications this has for his own theories.

Of course the idea was to calm suspicions that people would possess only the half-dozen rights enumerated in the Bill of Rights (plus patents!) and no others. Even so, Amendment IX did not guarantee any un-enumerated rights; it just did not peremptorily “deny or disparage” any.

So, he starts talking about how the Ninth Amendment means that the Constitution cannot be construed to deny any un-enumerated rights, but at the same time doesn’t guarantee the un-enumerated rights. Does he not realize what the Tenth Amendment does immediately following this? It guarantees them! It says these rights not enumerated are reserved to the people. Stunning, isn’t it?

Life, liberty and property are not expressly granted status as fundamental “rights,” but only as personal possessions that may be deprived or taken according to “due process.” The crucial implication is that Amendment V exists in order to stipulate how the government may deny an individual claim to life, liberty or property. With due process, you life, liberty and property may be toast.

To an extent this is true; the 5th Amendment delineates the circumstances under which the government may deny your claim to life, liberty and property. From a libertarian perspective, simply having due process does not make the denial of life, liberty and property by the government just. Unless you have harmed someone else’s claims to those same rights, you cannot be denied your own.

The reasoning here, though, that life, liberty, and property are not established as fundamental rights, such as the freedom of the press, but as privileges, is backwards. The reason that life, liberty, and property may not be violated, except by due process, is because they are fundamental. If the Constitution said that the right to life, liberty, and property can never be violated, that would mean no one could be punished for any violent crimes, which is nonsensical. There must be particular circumstances under which someone can have their life, liberty, or property revoked due to their actions.

The author is correct in exposing the weak protections for property in the Constitution, particularly in the 5th Amendment where it is stated, “private property [shall not] be taken for public use, without just compensation.” This is a gross failure of the Constitution; private property cannot be considered secure as long as eminent domain remains under the auspices of government power. Property is an absolute right; so long as one does not engage in violating another’s absolute right, they cannot be justly be denied their property right, regardless of what their Constitution says or what powers their government may possess.

Also, as someone who believes that Intellectual Property is an artificial creation, I cannot support the protection provided in the Constitution for patents and copyrights, as these are not actual rights being protected; rather they are monopoly privileges. I wholeheartedly agree that property rights are sadly ignored in the Constitution, but this doesn’t lend support to the argument the author is making about limited government. Again, that property rights aren’t expressly enumerated in the Constitution doesn’t matter because of the Tenth Amendment, which reserves this right to the people.

In general, the article is a sophomoric attempt to reinterpret the Constitution without any reference to historical meaning using ostentatious wordplay to invent a new Constitutional interpretation that the actual evidence cannot support. The terms used in the Constitution were much more specific and meaningful than the author let on; every term in the Constitution is ambiguous and open to wide interpretation, by the author’s view.

In the end, the author expresses some good sentiments and clearly understands that the Constitutions has completely failed in its intentions. However, I would advise the author against doing any further Constitutional interpretation until he’s willing to reference the debates in the Constitutional convention as well as the several state conventions when making assertions as to its meaning.

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