Constitutional Baby Babble from TIME Magazine

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by Rob Natelson

Several readers sent me for comment a lengthy cover article in Time Magazine by managing editor Richard Stengel.

Stengel’s piece is one result of new public interest in our Constitution and in “first principles”—interest that has forced political liberals (Stengel has been a paid Democratic activist) to think about the document’s real meaning.  Previously, of course, most of them had given that subject little thought. So while it’s good that they are now addressing it, like a baby learning language the results are often garbled.

One might have hoped Mr. Stengel to be knowledgeable about issues of constitutional meaning. A Rhodes Scholar and Princeton grad, he was president of the National Constitution Center for several years.  But his essay demonstrates that he has a long way to go—and that he should have become more fluent before presuming to instruct Time readers in the subject.

Correcting all of the irrelevancies, distortions, and errors in his essay of nearly 5000 words would take far longer than it is worth. Below is just a sample:

Stengel: “Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.”

Answer:  Well, yes, but so what? What, really, is the impact of miniskirts on whether the Founders’ views are relevant today? Is Mr. Stengel saying that sexting renders James Madison irrelevant? Or consider it this way: The Montana Constitution (a favorite of “progressives”) was created in 1972, before sexting—or email—was invented. Does that render the Montana Constitution illegitimate or obsolete?

Airplanes? If they fly across state lines, Congress can regulate them under the Interstate Commerce Clause. Lady Gaga? Her performances are (largely) protected from federal interference by the First Amendment.  So what really is the problem here?

Stengel: “People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn’t even dream that man could fly, much less use a global-positioning satellite to aim a missile, it’s hard to say what he would think.”

Answer: No it’s not.  As I mentioned in an earlier post, our Libya actions clearly fall under the definition of “war” as the Founders understood it, and the Constitution clearly requires the President to get congressional approval.  (Incidentally, Washington would have known about manned flight, which began in hot air balloons several years before the Constitution was written; as a former general, he also would have considered some of the military applications.)

Stengel: “What would the framers say about whether a tax on people who did not buy health insurance is an abuse of Congress’s authority under the commerce clause? Well, since James Madison did not know what health insurance was and doctors back then still used leeches, it’s difficult to know what he would say.”

Answer: These are really confused sentences.  “Taxes” are authorized by Article I, Section 8, Clause 1, not by the Commerce Clause (I-8-3). Four courts have now held that the individual mandates in Obamacare are not taxes, but attempted commercial exactions. This conclusion is accurate constitutionally. As for leeches: Changes in methods and financing of health care may be relevant to some constitutional issues, but it is hard to see how they are relevant to the constitutionality of Obamacare.

Stengel: “And what would Thomas Jefferson, a man who owned slaves and is believed to have fathered children with at least one of them, think about a half-white, half-black American President born in Hawaii (a state that did not exist)? Again, hard to say.”

Answer: What Jefferson would have thought on this subject is irrelevant. The Founders did not insert racial qualifications into the Constitution. And they did allow new states to be added to the union. Also, since Jefferson was serving in France at the time and not involved in either the drafting or ratification of the Constitution, his opinions on constitutional subjects are not of great probative value.

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans.  Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

Stengel: “So, are we in a constitutional crisis? In a word, no. The Constitution was born in crisis.”

Answer: Whether the Constitution was born in crisis is simply irrelevant to whether we are in a constitutional crisis today.  I’m inclined to think we are, but that’s another topic.

Stengel: “It was written in secret and in violation of the existing one, the Articles of Confederation.”

Answer: The convention was no secret, but widely-heralded—although the debates themselves were confidential.  As I have explained before, nearly all the delegates were fully empowered by publicly-available state commissions to recommend a new document.

Stengel: “If the Constitution was intended to limit the federal government, it sure doesn’t say so.”

Answer: Uh?  What about the Bill of Rights? What about the enumeration scheme? What about Article I, Section 9?

Stengel: “Article I, Section 8. . . ends with the ‘necessary and proper’ clause. . . Limited government indeed.

Answer: Stengel is apparently unfamiliar with the meaning the Necessary and Proper Clause or even what Hamilton and Madison said about it in The Federalist. The Clause is not a grant of power, but a recital clarifying how the document should be read.

Stengel (on Libya): “Since the signing of the Constitution in 1787, Congress has declared war exactly five times. . .  But in an age of potential nuclear war, global terrorism and missiles that can be launched in seconds and take only minutes to travel thousands of miles, the President must be able to act quickly. In 1787 it took months to order uniforms and muster troops — and declarations of war were written on parchment with quill pens.”

Answer: At the time of the Founding, declarations of war did not have to be titled as such.  Congressional enactments authorized actions against the French during the Adams administration, against the Barbary pirates in the Jefferson administration—and, more recently, against North Vietnam and Iraq (twice).  All qualified as the necessary congressional support. Stengel greatly exaggerates the number of prior abuses, apparently to give Obama a pass on Libya.

Also: Technological progress renders rapid military response more necessary. But it also makes it more practical for the President to obtain a quick declaration of war from Congress.

Stengel (on Obamacare): “Critics have argued that Obama’s health care act takes government power to unprecedented — and unconstitutional — levels. . . Well, maybe. The government does require us to pay taxes, serve on juries, register for the draft. The government also compels us to buy car insurance (if we want to legally drive our car), which is a product from a private company.”

Answer: The Constitution authorizes taxes, jury duty, and draft registration specifically or by direct implication from enumerated powers. It does not authorize Obamacare.

Mr. Stengel is guilty of some sleight of hand here:  “The government” that compels us to buy car insurance is the state government (broad police power), not the federal government (enumerated powers).

Stengel: “No one really disputes Congress’s power to regulate interstate commerce, and it’s silly to argue that health care — which accounts for 17% of the U.S. economy — doesn’t involve interstate commerce.”

Answer: Under the Constitution, Congress has power to regulate “Commerce . . . among the several States,” not activities that merely “involve” (or, in the words of the Supreme Court, “substantially affect”) interstate commerce. (“Commerce” in the Constitution means mercantile trade, transportation, and a few other activities.)  The Founders left most economic activities, including those that impacted interstate commerce, to the exclusive jurisdiction of the states.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

Stengel: “The 14th Amendment, ratified in 1868, basically holds that if you’re physically born in the U.S. or a U.S. territory, you’re a citizen. Full stop.”

Answer: False.  The Fourteenth Amendment also requires that one be “subject to the jurisdiction” of the United States. If you are born here because your parent is a foreign ambassador, you are not a citizen.  Before corrective legislation was passed, tribal Indians born here were not citizens.  How much further the “subject to the jurisdiction” exclusion goes is a matter of good faith constitutional debate.  That debate will not be halted by Stengel screeching “Full stop.”

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

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Incidentally, the correct translation is “For laws are silent amid arms.”

Stengel: “The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws.”

Answer: This is largely nonsense. When read against the background of 18th century law, the Constitution actually is a reasonably precise document. The Founders placed into the instrument some very rigid terms, and some with more flexibility. They had some disagreements about the meaning, but the level of their disagreements and their irresolvability have both been greatly exaggerated. Many of the  modern disputes about constitutional meaning are the results of the ignorance of the disputants, and not inherent in the instrument.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/