Section 1021(b)(2) authorizes the President to designate persons as enemy combatants that “substantially supported” Al-Qaeda, the Taliban or “associated forces engaged in hostilities against the United States or its coalition partners.” Section 1021 is subject to abuse because it applies to vague “substantial support” for undefined “associated forces.”

Moreover, although section 1021(d) states it is not intended to limit or expand the scope of the 2001 Authorization to Use Military Force (AUMF), section 1021(b)(2)’s covered persons extend beyond the parameters of the AUMF (which was limited to those responsible for 9/11 and those who harbor them).

Did Congress and the President really expand an authorization to use military force with a multi-hundred page appropriation bill? So much for a Constitutionally-required declaration of war…

Pursuant to section 1021(c), the president may dispose of such covered persons according to the Law of War, including: 1) Indefinite detention without charge or trial, 2) Military tribunals, and 3) transfer to foreign jurisdictions or entities.

Section 1021 does not exclude U.S. citizens and legal aliens for actions occurring within the United States as section 1022(b) does. In fact, the U.S. Senate rejected an amendment by Senator Udall that would have banned the indefinite detention of U.S. citizens. Section 1021(e) merely seeks to preserve existing law and authorities pertaining to the detention of U.S. citizens, legal resident aliens, and all other persons found within the United States.

The law and authorities concerning the President’s authority to designate U.S. citizens as enemy combatants are unclear. The WWII case of Ex parte Quirin, 317 U.S. 1 (1942) authorized the president to designate as enemy combatants German saboteurs found within the U.S. In Hamden v. Rumsfeldi, 542 U.S. 507 (2004) the Supreme Court ruled that a U.S. citizen found on a foreign battlefield may be designated an enemy combatant, but is entitled to a measure of due process: at least a military hearing to determine his status as an enemy combatant (where hearsay may come in and the burden may be on the alleged enemy combatant).

The recent Fourth Circuit case of Padilla v. Hanft, 423 F.3d 386 (4th Cir. S.C. 2005) permits enemy combatant status for U.S. citizens captured within the U.S. whose actions are encompassed by the 2001 AUMF. The Supreme Court refused to review the legality of Padilla’s military detention upon Padilla’s transfer to civilian jurisdiction on the eve of Supreme Court review, with three justices sharply dissenting. Padilla v. Hanft, 547 U.S. 1062 (2006). The dissenting judges in Padilla felt strongly that the indefinite detention in Padilla was a harm capable of repetition and the case should be dealt with by the Court. Indeed, if the Supreme Court had not entertained the Bush administration’s jurisdictional hop scotch and ruled on the authority of the President to designate U.S. citizens captured in the U.S. as enemy combatants, we would have clarity on the President’s powers.

There should be no grey areas concerning our fundamental rights to liberty and due process. It ought to be clear whether U.S. citizens found within the United States may be designated as enemy combatants. Unfortunately, the Supreme Court has not offered concrete guidance on this question and has enabled the grey area the NDAA regrettably seeks to exploit. In fact, the office of President, under Bush and Obama, has asserted the ability to designate persons captured within the U.S., including U.S. citizens, as enemy combatants subject to the Law of War. Certainly, clarity from the Supreme Court is called for.

If U.S. citizens (and others) within U.S. may be designated as enemy combatants, numerous Constitutional rights and protections afforded defendants in normal criminal proceedings and trials for treason would not be present. In Boumediene v. Bush, 553 U.S. 723 (2008), our Supreme Court held that persons designated as enemy combatants for indefinite detention possess the right to a military hearing to contest their confinement, and may seek a writ of habeas corpus from the civilian courts. However, hearsay evidence is freely admissible and a preponderance of the evidence standard is sufficient for continued detention until the cessation of hostilities (although the question of whether a lesser standard of proof would be sufficient for indefinite detention has been left open). See Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010); Al Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010).

Think about that: you may be indefinitely detained based on hearsay that proves you were more likely than not an enemy combatant. No proof beyond a reasonable doubt or even clear and convincing evidence is needed to indefinitely keep you incarcerated. Such “enemy combatants” do not have the right to a jury of peers, whether for continued indefinite detention or ultimately, at a military tribunal. These military proceedings deny our most fundamental rights enshrined in the 4th 5th 6th and 14th Amendments to the Constitution, subvert civilian authority to the military, and strike at the very heart of who we are as Americans. Section 1021′s authorization to transfer persons to foreign jurisdictions, outside the reach of our Courts, is perhaps the most disconcerting. The fundamental rights possessed by a U.S. citizen, or other person, captured in the U.S. and transferred to a foreign jurisdiction, are entirely unclear.

Although President Obama signed the NDAA, he issued a signing statement expressing serious reservations: “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. . . . I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.” However, neither President Obama, nor his successor, are bound by this signing statement. And Obama mentions nothing about military tribunals or transfer to foreign jurisdictions of persons found within the U.S..

One must certainly question the President’s judgment: why would he sign the NDAA if he was cognizant of the grave implications to the Constitutional rights of persons within the U.S.? There is probably nothing more deserving of a Presidential veto than the NDAA! Given that Senator Carl Levin admitted on the floor of the Senate that the President demanded section 1021 apply to U.S. citizens, Obama’s signing statement is nothing more than politician double-speak. While every American should feel insulted by such underhanded political gamesmanship, the members of the armed forces have the double-affront of also being funded by a bill that purports to shred the very Constitution they have sworn their lives to protect.

What if the whole purpose of the Constitution was to limit the government? What if Congress’ enumerated powers in the Constitution no longer limited Congress, but were actually used as justification to extend Congress’ authority over every realm of human life?

What if the president, meant to be an equal to Congress, has become a democratically elected, term-limited monarch? What if the president assumed everything he did was legal, just because he’s the president? What if he could interrupt your regularly scheduled radio and TV programming for a special message from him? What if he could declare war on his own? What if he could read your emails and texts without a search warrant? What if he could kill you without warning?

What if the rights and principles guaranteed in the Constitution have been so distorted in the past 200 years as to be unrecognizable by the Founders? What if the states were mere provinces of a totally nationalized and fully centralized government? What if the Constitution was amended stealthily, not by constitutional amendments duly passed by the states, but by the constant and persistent expansion of the federal government’s role in our lives? What if the federal government decided whether its own powers were proper and constitutional?

What if you needed a license from the government to speak, to assemble or to protest the government? What if the right to keep and bear arms only applied to the government? What if posse comitatus – the law that prohibits our military from our streets – were no longer in effect? What if the government considered the military an adequate dispenser of domestic law enforcement? What if cops looked and acted like troops and you couldn’t distinguish the military from the police? What if federal agents could write their own search warrants in defiance of the Constitution? What if the government could decide when you weren’t entitled to a jury trial?

What if the government could take your property whenever it wanted it? What if the government could continue prosecuting you until it got the verdict it wanted? What if the government could force you to testify against yourself simply by labeling you a domestic terrorist? What if the government could torture you until you said what the government wanted to hear? What if people running for president actually supported torture? What if the government tortured your children to get to you? What if the government could send you to your death and your innocence meant nothing so long as the government’s procedures were followed? What if America’s prison population, the largest in the world, was the result of a cruel and unusual way for a country to be free? What if half the prison population never harmed anyone but themselves?

What if the people had no rights except those the government chose to let them have? What if the states had no rights except to do as the federal government commanded? What if our elected officials didn’t really live among us, but all instead had their hearts and their homes in Washington, D.C.? What if the government could strip you of your rights because of where your mother was when you were born? What if the income tax was unconstitutional? What if the states were convinced to give up their representation in Congress? What if the government tried to ban you from using a substance older than the government itself? What if voting didn’t mean anything anymore because both political parties stand for Big Government?

Learn the truth from Judge Nap

What if the government could write any law, regulate any behavior and tax any event, the Constitution be damned? What if the government was the reason we don’t have a Constitution anymore? What if you could love your country but hate what the government has done to it? What if sometimes to love your country, you had to alter or abolish the government?

What if Jefferson was right? What if that government is best which governs least? What if I’m right? What if the government is wrong? What if it is dangerous to be right when the government is wrong? What if it is better to perish fighting for freedom than to live as a slave? What if freedom’s greatest hour of danger is now?

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel, and the host of  FreedomWatch on the Fox Business Network. His latest books are Lies the Government Told You: Myth, Power, and Deception in American History, (Nelson, 2010), and his newest release, It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom.

Copyright © 2011 Creators Syndicate

EDITOR’S NOTE: At the recent GOP debate on CNN, the Patriot Act was the lead subject. Newt Gingrich told viewers that the act wasn’t strong enough. Herman Cain was willing to get rid of some it, but wasn’t willing to “throw the baby out with the bath water.” Candidate after candidate referred to the Patriot Act as good, neceesary, and something they would most-certainly be in favor of keeping, or strengthening. Ron Paul was the only candidate with the courage to say that the Patriot Act is both a violation of liberty and the constitution. Reinforcing this correct view – we present the following column on the Patriot Act, written by Judge Andrew Napolitano on December 16, 2005.

Congress once respected the Fourth Amendment until it began cutting holes in it. Before Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1977, Americans and even non-citizens physically present here enjoyed the right to privacy guaranteed by the Fourth Amendment. That Amendment, which was written out of a revulsion to warrants that let British soldiers look for any tangible thing anywhere they chose, specifically requires that the government demonstrate to a judge and the judge specifically find the existence of probable cause of criminal activity on the part of the person whose property the government wishes to search. The Fourth Amendment commands that only a judge can authorize a search warrant.

FISA unconstitutionally changed the probable cause of criminality requirement to probable cause of employment by a foreign government, hostile or friendly. Under FISA, if the government can demonstrate the foreign agency or employment status of the person whose things it wishes to search, the secret FISA court will issue the search warrant.

But even FISA respects constitutional liberty, since it prohibits prosecutions based on evidence obtained from these warrants. Thus, if a FISA warrant reveals that the embassy janitor is really a spy who beats his wife, he would not and could not be prosecuted for either crime because the evidence of his crimes was obtained in violation of the Fourth Amendment’s requirement of a judicial finding of probable cause of criminal activity. Instead of being prosecuted, he would be deported.

A year later in 1978, cutting yet another hole in the Fourth Amendment, Congress revealed its distaste for fidelity to the Constitution and its ignorance of the British government’s abuse of the colonists by enacting the Orwellian named, Right to Financial Privacy Act. This statute, for the first time in American history, let federal agents write their own search warrants, but limited the subjects of those warrants to financial institutions. Just like FISA, it recognized the unconstitutional nature of evidence obtained by a self-written search warrant, and banned the use of such evidence in criminal prosecutions.

In 1986, Congress continued to cut. It disregarded yet again the Fourth Amendment’s protection of privacy when it enacted the Electronic Communications Privacy Act which allowed federal agents to serve self-written search warrants on collectors of digital financial data, but continued to recognize that evidence thus obtained was constitutionally incompetent for criminal prosecution purposes.

The deepest cut came on October 15, 2001 when Congress enacted the Patriot Act. With minimal floor debate in the Senate and no floor debate in the House (House members were given only 30 minutes to read the 315 page bill), Congress enacted this most unpatriotic rejection of privacy and constitutional guarantees. Together with its offspring the Intelligence Authorization Act for Fiscal 2004 and the Intelligence Reform Act of 2004, the Patriot Act not only permits the execution of self-written search warrants on a host of new subjects, it rejects the no-criminal-prosecution protections of its predecessors by requiring evidence obtained contrary to the Fourth Amendment to be turned over to prosecutors and mandating that such evidence is constitutionally competent in criminal prosecutions.

The new version of the Patriot Act which the Senate will debate this weekend purports to make all of this congressional rejection of our history, our values, and our Constitution the law of the land.

So, if your representative in the House has voted, or your Senators do vote, for the House/Senate conference approved version, they will be authorizing federal agents on their own, in violation of the Constitution, and without you knowing it, to obtain records about you from your accountant, bank, boat dealer, bodega, book store, car dealer, casino, computer server, credit union, dentist, HMO, hospital, hotel manager, insurance company, jewelry store, lawyer, library, pawn broker, pharmacist, physician, postman, real estate agent, supermarket, tax collectors, telephone company, travel agency, and trust company, and use the evidence thus obtained in any criminal prosecution against you.

Why would Congress, whose members swore to uphold the Constitution, authorize such a massive evasion of it by the federal agents we have come to rely upon to protect our freedoms? Why would Congress nullify the Fourth Amendment “guaranteed right to privacy for which we and our forbearers have fought and paid dearly? How could the men and women we elect to fortify our freedoms and write our laws so naively embrace the less-freedom-equals-more-security canard? Why have we fought for 230 years to keep foreign governments from eviscerating our freedoms if we will voluntarily let our own government do so?

The unfortunate answer to these questions is the inescapable historical truth that those in government from both parties and with a few courageous exceptions do not feel constrained by the Constitution. They think they can do whatever they want. They have hired vast teams of government lawyers to twist and torture the plain meaning of the Fourth Amendment to justify their aggrandizement of power to themselves. They vote for legislation they have not read and do not understand. Their only fear is being overruled by judges. In the case of the Patriot Act, they should be afraid. The federal judges who have published opinions on the challenges to it have all found it constitutionally flawed.

The Fourth Amendment worked for 200 years to facilitate law enforcement and protect constitutional freedoms before Congress began to cut holes in it. Judges sit in every state in the Union 24/7 to hear probable cause applications for search warrants. There is simply no real demonstrable evidence that our American-value-driven-constitutional-privacy-protection-system is in need of such a radical change.

Learn the truth from Judge Nap

A self-written search warrant, even one called a national security letter, is the ultimate constitutional farce. What federal agents would not authorize themselves to seize whatever they wished? Why even bother with such a meaningless requirement? We might as well let the feds rummage through any office, basement, computer, or bedroom they choose. Who would trust government agents with this unfettered unreviewable power? The Framers did not. Why would government agents bother going to a judge with probable cause seeking a search warrant if they can simply write their own? Big Brother must have caught on because federal agents have written and executed self-written search warrants on over 120,000 unsuspecting Americans since October 2001.

Is this the society we want? Have we ultimately elected a government to spy on all of us? The Fourth Amendment is the lynchpin of our personal privacy and individual dignity. Without the Fourth Amendment’s protections, we will become another East Germany. The Congress must recognize this before it is too late.

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel, and the host of  FreedomWatch on the Fox Business Network. His latest books are Lies the Government Told You: Myth, Power, and Deception in American History, (Nelson, 2010), and his newest release, It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom.

Copyright © 2011 Andrew P. Napolitano

“I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” So said presidential candidate, Senator Barack Obama, at a 2007 campaign event in Nashua, NH. And although proponents of medical marijuana later had reason to doubt him after his DEA agents raided a California dispensary, Attorney General Eric Holder soon reassured everyone that there would be change.

After a press conference held by Holder that took place shortly after the president’s inauguration, many celebrated what they interpreted as the fulfilment of his earlier promise that under his administration, the Justice Department would no longer raid medical marijuana dispensaries that were established legally under state law.

But was any such a promise in fact ever made? If one examines Obama’s campaign promises regarding medical marijuana and listens carefully to the answer Eric Holder gave at the press conference mentioned above, it’s possible to conclude that no protection or immunity was ever promised for organizations or individuals that cultivate or distribute medical marijuana in any state for any reason. Here’s what was actually said at the press conference that got so much attention.

A reporter made an observation and asked Holder a question about medical marijuana, saying:

“Right after the inauguration there were some raids on California medical marijuana dispensaries. Was that a deliberate decision by the Justice Department..do you expect those raids to continue?”

Holder responded to the question by saying:

“No..”, but then suddenly, before he could continue, Holder was interrupted by the same reporter, who happened to have microphone trouble at that same moment, making it almost impossible to hear what he said. One can make out the word “campaign”, but that’s about it. In any case, after the interruption, Holder continued. But his response became much more ambiguous. He said:

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American policy.”

Just what did Obama say during the campaign? While never promising voters safety from federal raids, arrest or prosecution, Candidate Obama made numerous statements that he did not believe raiding medical marijuana users should or would be a top priority of the Justice Department under his administration.  In fact, he put forth the following statement during a July of 2007 town hall meeting in Manchester, New Hampshire:  ”The Justice Department going after sick individuals using [marijuana] as a palliative instead of going after serious criminals makes no sense.”

In a statement made during a November of 2007 town hall meeting in Iowa he seems to support the use of medical marijuana as a means of prescribed pain relief.

“My attitude is if the science and the doctors suggest that the best palliative care and the way to relieve pain and suffering is medical marijuana then that’s something I’m open to because there’s no difference between that and morphine when it comes to just giving people relief from pain. But I want to do it under strict guidelines. I want it prescribed in the same way that other painkillers or palliative drugs are prescribed.”

While relaying these assurances during the campaign, they are certainly not reflected in the Justice Department’s policies these days, at least when it comes to dispensaries.  It seems in fact the the DOJ has taken a more direct approach, through it’s US Attorneys.

Threatening Letters

Earlier this month Governor Chafee of Rhode Island received an unsolicited letter from U.S. Attorney Peter Neronha. The letter made it clear that the Justice Department still considers marijuana cultivation and distribution to be a violation of federal law, even if done in accordance with state laws in places where medical marijuana is permitted. The letter lists potential actions the Justice Department might consider in reaction to what it deems to be violations of federal drug laws, including criminal prosecution of those involved in the cultivation and distribution of medical marijuana.

Other states that have received similar letters include Washington, California, Colorado, Vermont and Arizona. And while some states, like Vermont, are proceeding with legislation to legalize the medicinal use of medical marijuana anyway, other states seem to have been deterred. Washington’s Governor Christine Gregoire, for example, vetoed most sections of  S.B. 5073, which would have licensed dispensaries and protected patients from arrest. In other states, such as Arizona, where a law allowing medical marijuana has already passed, the implementation of certain measures now mandated by state law, such as the licensing of dispensaries, have been put on hold, pending the outcome of a federal court case.

Arizona’s Attorney General, Tom Horne, filed a lawsuit in federal court shortly after Department of Health Services Director, Will Humble, received a letter from U.S. Attorney Dennis Burke, warning him that:

“Compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution.” And that, “The United States Attorney’s Office for the District of Arizona (“the USAO”) will continue to vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving  marijuana, even if such activities are permitted under state law.” [Emphasis added]

The complaint, filed by the Arizona AG names U.S. Attorney General Eric Holder and U.S. Attorney Dennis Burke as defendants and seeks a declaratory judgment, in order to resolve competing state and federal pressures. But even if the lawsuit is a sincere effort to obtain clarification and is not a mere pretext to delay the implementation of the medical marijuana law, is it really worth the delay and expense?

Enough is Enough

Both Governor Brewer and the Attorney General could save Arizonans a lot of time and money by admitting that everyone knows what the outcome will be already. The federal judiciary will claim what it has been claiming for decades: That federal law always trumps state law because of the “supremacy clause”. This has almost always been the court’s opinion, regardless of how deliberate, palpable or dangerous a violation of the Constitution the federal “law” in question might be.

For decades, the U.S. Supreme Court has engaged in naked judicial usurpation of the states’ reserved powers, by declaring that Congress has the constitutional authority to regulate or ban a plant that is cultivated, distributed and consumed, all within a state’s boundaries. Even if this plant never leaves Arizona, the Supreme Court says Congress has the authority to outlaw it because of the Constitution’s “commerce clause”.

This is a completely perverted interpretation of the “commerce clause”, of course. After all, the “commerce clause” simply states thatCongress shall have power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. But what can one expect from a group of activist judges that one blogger described as nine unelected and unaccountable bureaucratic central planners who detest the limits of the Constitution?

The fact is that despite decades of case law, the federal government has no genuine constitutional authority to regulate marijuana, medical or otherwise, that is never transported across state lines for commercial purposes. The President knows it; the Attorney General knows it; Governor Brewer knows it, and those of us who know anything about the Constitution’s original meaning and intent know it. And they know we know it!

Isn’t it time that Governors and state Attorneys General stopped wasting our precious time and money playing these silly legal games, grow a spine, and actually fulfill the oath they took to support and defend the Constitution, including the Tenth Amendment? If the people of a state decide in their sovereign capacity that marijuana should be legal, for any reason, or no particular reason at all, then their representatives in state government need to tell the folks in Washington, D.C., in no uncertain terms, that they have no say in the matter.

This is the system of vertical checks and balances that the Constitution, as it was understood by those who ratified it, established. So when it comes to decisions that the Constitution clearly leaves to the states or to the people, the time is long overdue for those who claim to be our public servants on the state level, to quit begging Washington, D.C. for permission and to start doing a little more checking and balancing already!

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

The Constitution’s Framers thought deeply about the qualifications for federal office. Those qualifications are in the Constitution for very good reasons.  Despite some of the snarky commentary you hear on the subject, it has been entirely appropriate to insist that Barack Obama—or any other candidate for federal office—provide proof that he meets the constitutional requirements for that office.

Indeed, the real discussion over the President’s birth certificate should not be the sanity of the questioners, but the reasons the President didn’t produce his birth certificate long ago, just as you or I would have done.

Among the values the Founders thought central to good republican government was what they called “sympathy” or “fellow-feeling.” The basic idea was that government was a public trust, so lawmakers and officials should feel an identity of interest, rather than a conflict of interest, with the citizenry they served.  (For a detailed article on the subject, click here.)

This conclusion was based on historical experience with British and foreign officeholders who lacked the quality of sympathy.

Accordingly, the Constitution mandates that to serve in the House of Representatives a person (1) be at least 25 years old, (2) be a citizen of the United States, (3) have held citizenship for at least seven years, and (4) live at the time of election in the state he is representing. The last three requirements all were designed to ensure sympathy with those he was to serve. U.S. Const., I-2-2. The age requirement was designed to promote both sympathy and maturity.

The importance of sympathy grew as the importance of the office grew.  Thus, Senators must meet more demanding requirements: the minimum age is 30 rather than 25, and the period of citizenship is nine rather than seven years. U.S. Const., I–3-3.

Note that these requirements still are more relaxed than those then imposed for Members of Parliament in Britain, where an MP had to be a natural born subject.  A subject was natural born if he was born in Britain or a British territory or, if born abroad, his father was at the time a loyal subject not engaged in treasonous or felonious activities.

Although the American Founders did not require natural-born status for Congress, they did insist that the President have that status.  They also imposed a residency requirement of 14 years and a minimum age of 35. U.S. Const. II-1-5.

Get the New Book Today!

Again, the residency and natural-born requirements were not arbitrary; they were the product of long historical experience.  For example, King Charles II had spent many years in Europe before assuming the British throne, and after doing so he secretly betrayed Britain in exchange for a pension from the King of France.  George I had been born in Germany, never learned much English, and remained more German than English during his 14-year reign. Since the American President would largely control foreign policy, it was—and is—uniquely important that he be natural born and have long residence in the U.S. before taking office.

In my view, the states would be wise to prevent future “birther-type” controversies by enacting laws requiring that aspirants for high federal office who wish to appear on the ballot first provide basic proof that they meet the Constitution’s prerequisites.

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/

EDITOR’S NOTE: Despite an important message of the 2010 elections – that Americans want the federal government to respect constitutional limits – there is now an effort in Congress to federalize yet another area of American life. Multiple sponsors have introduced House Resolution 5 (HR5), a medical malpractice measure that would re-write health care liability law not just for federal courts, but for every state court as well. Civil liability issues, both traditionally and constitutionally a matter reserved to the states, would become largely under the control of the federal government. Even state jury awards would become subject to federal rules.

Unlike the Patient Protection and Affordable Care Act, this usurpation of power is being spearheaded by Republicans rather than Democrats. In a letter to four influential members of Congress (Lamar Smith, John Conyers, Fred Upton and Henry Waxman) constitutional scholar Rob Natelson responds. The text of the letter is reproduced here below, courtesy of the author.

*******

RE: Constitutional objections to HR 5

Gentlemen:

My name is Robert G. Natelson, and I am Senior Fellow in Constitutional Jurisprudence at the Independence Institute, a free-market-oriented policy center in Golden, Colorado. I hold similar positions with the Montana Policy Institute and the Goldwater Institute, in Phoenix, Arizona. Until last spring, I was Professor of Law at the University of Montana, and served in that position for 23 years. I taught, among other subjects, Constitutional Law, Advanced Constitutional Law, and Constitutional History. However, I write on my own behalf, not on behalf of any organization.

As a scholar, I have published extensively, for both academic and general audiences, on constitutional issues, particularly but not limited to, the Founding Era. Last year, for example, I co-authored a scholarly book on the Necessary and Proper Clause published by Cambridge University Press, and also authored a book explaining for laypersons the Constitution’s original meaning. My publications can be found at http://constitution.i2i.org/about.

Unlike many in the professorate, I came to academia after a decade of experience in the private sector, where I owned and operated two small businesses. Moreover, I have been a conservative Republican political activist, and in 1996 and in 2000 was a Republican candidate for Governor of Montana. However, I take particular care to ensure that my political views do not influence my deductions of constitutional meaning.

Over the past few years, I have been gravely concerned by the seeming assumption among some politicians that the powers of the federal government are nearly unlimited. I was encouraged when, last year, many Members of Congress were elected who promised to honor the Constitution’s rule that the federal government enjoys only circumscribed and enumerated powers. Therefore, I was particularly distressed to learn that many of those Members, including self-described conservatives, are now supporting H.R. 5, the so-called “HEALTH Act of 2011,” a measure based on a grossly overly-expansive view of the authority of Congress.

To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter, civil actions in federal and state courts, are not within the Constitution’s meaning of “Commerce.” Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate commerce. On the contrary, during the debates over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states.

The Constitution’s Grants of Enumerated Powers Do Not Confer Authority
Over All Matters Conceivably “National”

A key argument behind H.R. 5 is that the Constitution authorizes congressional action because health lawsuits have interstate, or national, implications: that we are “one country,” and there must be a “common system”dealing with such issues. This position represents an alarming disregard of the nature of American federalism and of how the Constitution, which all Members of Congress have taken an oath to support, distributes authority between the central government and the states.

During the Constitutional Convention of 1787, the delegates consciously rejected proposals, such those contained in James Madison’s initial Virginia Plan and in Alexander Hamilton’s plan, that would have given Congress authority over all matters with interstate or national effects. Instead, they adopted the formula of the Committee of Detail, which substituted for such open-ended authority a list of circumscribed, enumerated powers. The delegates did so because they recognized that a central government that could regulate any activity with interstate “effects” was functionally not federal, but unitary. Because the Framers believed limits on central power were critical to both good government and the preservation of liberty, they restricted federal authority to certain principal (not all) issues of national concern, and left the remainder with the states and people. As it turned out, even with these limits the Constitution was too centralizing to be accepted by the general public. In order to obtain ratification, the Constitution’s advocates had to agree to further restrictions on federal authority, later encapsulated in the Bill of Rights.

Civil Justice is not “Commerce”

Supporters of H.R. 5 have quoted Madison and Hamilton on the need for Congress to regulate, and thereby facilitate, “Commerce among the States.” [1] As an initial matter, it is not clear that this bill really is designed to facilitate interstate commerce, since the Report of the Committee on the Judiciary speaks of stemming the flow of physicians from state to state. [2] But this is constitutionally irrelevant, because neither civil justice nor health care is “Commerce” as the Constitution uses the term.

The Constitution’s definition of “Commerce” has been the subject of several recent studies cumulatively relying on thousands of legal and lay uses of the word during the Founding Era. (I conducted one of those studies using English and American sources at Oxford University.) [3] In the Constitution, the word “Commerce” encompasses trade in goods among merchants and certain related activities, such as commercial paper, transportation, and cargo insurance. It does not include other economic activities, and it certainly does not include health care or the states’ administration of civil justice.

If there were any doubt on this score, it would be settled by the fact that during the ratification debates the Constitution’s supporters repeatedly represented that, outside federal territories and enclaves, the Constitution left such matters to the exclusive jurisdiction of the states. Even before the Ninth and Tenth Amendments reinforced the limits, Founders such as Madison, Hamilton, and James Wilson, among others, represented that tort law and civil justice specifically were to be state concerns. [4] True, Congress could erect and regulate federal courts with diversity jurisdiction, but only because of separate constitutional grants, [5] not as a result of the Commerce Power. Indeed, I have never seen any evidence that the power to erect and regulate federal courts included authority to alter prevailing tort law even in those courts, and certainly not in state courts.

To the extent that H.R. 5 regulates health care in addition to civil justice, it is also outside the Commerce Clause. No less an authority than Chief Justice John Marshall said so in Gibbons v. Ogden, [6] a decision celebrated as an expansive interpretation of the Commerce Power. In that case, Marshall (himself formerly a leading Ratifier) stated that “health laws of every description,” presumably including laws governing health care litigation, were reserved exclusively to the states. [7]

H.R. 5 is Outside the Scope of Congress’s Power Under the Necessary and Proper Clause

The Necessary and Proper Clause [8] recites that Congress has authority to adopt “Laws necessary and proper” to executing its other powers. However, as several leading Founders (including Marshall) explained, this provision does not grant additional authority; it merely clarifies that the listed powers include those inherently subordinate (œincidental) to those listed powers. [9] The Necessary and Proper Clause does not authorize Congress to control issues of health care or civil justice, because such matters are important issues in their own right, and not merely incidental to mercantile interstate trade in goods (Commerce).

In recent years, both Congress and the Supreme Court have assumed that the Necessary and Proper Clause permits Congress to regulate economic activity substantially affecting Commerce, but this is clearly erroneous because it contradicts specific statements at the Founding and because it undermines the Constitution’s federal scheme. Moreover, H.R. 5 seems to exceed even that expansive definition of the Necessary and Proper Clause: not only does it purport to govern civil justice matters that “affect” (rather than being limited to those that “substantially affect”) interstate commerce, but because civil justice is not an “economic activity” as the modern Supreme Court uses the term. [10]

Indeed, it is clear from H.R. 5′s  Statement of Purpose (§ 2(b)) that the measure is not targeted at regulating commerce at all, but only at issues of health care, civil justice, and damages. Such a purpose is not saved by pretextual recitals that those matters “affect” commerce. John Marshall stated in his celebrated Necessary and Proper Clause case, McCulloch v. Maryland: [11]

Should congress. . . under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. [12]

As noted earlier, health laws were among those Marshall listed as outside the objects entrusted to Congress.

H.R. 5′s “State Flexibility” Section Does Nothing To Alleviate Constitutional Concerns

Section 10 of H.R. 5 provides that certain state laws are not to be pre-empted by the measure. The section is objectionable if only because it seems to preserve those laws as a matter of congressional grace rather than as a recognition of the constitutional limits on Congress. Moreover, the section grants protection only when the state undertakes policy choices preferred by Congress. Thus, state laws that offer “greater . . . protections for health care providers” are preserved, while those that provide less are overridden. States that enact statutory caps on damages receive protection, while those that make the traditional common law choice, leaving the amount to jury and judge, receive no protection. The section is, in other words, more in the nature of an insult to the states than a protection of federalism.

Conclusion

All Members of Congress take an oath to follow the Constitution. Moreover, many Members of the present Congress owe their election partly to promises to honor the Constitution as adopted by the people through their state ratifying conventions, except, of course, where the people have duly amended it. Such a commitment is unconditional. It is not contingent on whether an issue is “liberal” or “conservative” or whether it appeals to Interest Group A or Interest Group B.

There is a practical political aspect to this as well. It is no secret that Congress is deeply unpopular with the American people, in part because Members are seen as giving lip-service to law and principle, and then disregarding both when law and principle become even slightly inconvenient. It also is no secret that Congress as an institution is in difficulties over its collective head, due largely to its attempts to address all issues, in contravention of constitutional limits, rather than restricting itself to the issues the Constitution entrusts to it.

I believe there is a health liability problem in many states, but that is an issue constitutionally to be addressed by the states themselves. States that adopt poor policies will suffer accordingly, as some have, but correcting the problem is the prerogative and responsibility of those states, not of an overreaching federal government.

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I urge you to reject H.R. 5 as exceeding congressional authority, and thereby send the message that this Congress will focus only on issues the Constitution authorizes it to address, many of which desperately call for your attention.

Sincerely,

ROBERT G. NATELSON

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/

NOTES:

1. E.g., Report of the House Committee on the Judiciary, page 38.
2. Id.
3. See The Legal Meaning of “Commerce” In the Commerce Clause, 80 St. John’s L. Rev. 789 (2006) (which cites earlier studies). See also Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Mich. L. Rev. First Impressions 55 (2010) (with David Kopel).
4. Robert G. Natelson, The Enumerated Powers of States, 3 Nev. L. J. 469 (2003).
5. U.S. Constitution, art. I, § 8, cl. 9 & art. III, § 2, cl. 2; see also art. III, § 1.
6. 22 U.S. 1 (1824).
7. 22 U.S. at 203. See also Natelson, Enumerated, note 4 above.
8. U.S. Const., art. I, § 8, cl. 18.
9. See generally Gary Lawson, Geoffrey P. Miller, Robert G. Natelson & Guy I. Seidman, The Origins of the Necessary and Proper Clause (2010).
10. See Gonzales v. Raich, 545 U.S. 1, 13 (2005) (describing economic activity as the “production, distribution, and consumption of commodities”).
11. 17 U.S. 316 (1819).
12. 17 U.S. at 423.

Paul Abrams trotted out one of the favorite progressive arguments for virtually unlimited federal power in a March 9  Huffington Post article.

The good ole’ “general welfare” clause.

Abrams brings quite an academic pedigree to the party. Yale educated, summa cum laude, multiple advanced degrees…which goes to show an Ivy League education doesn’t necessarily guarantee a student will actually graduate knowing anything.

OK, perhaps that’s a bit harsh. He may be a fine lawyer and an excellent medical doctor, but a constitutional scholar – not so much.

Abrams’ argument goes like this.

Article 1, Section 8, Clause 1 grants the United States government the unqualified and unlimited power to raise and spend money, for example, to: provide healthcare for the elderly (or for everyone); provide old-age pension; build roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, housing; educate our children, re-train the unemployed, provide pre-school and day care; fund public health projects; invest in and conduct basic research; provide subsidies for agriculture; save the auto industry; create internets; and, yes, Tea Party Senator Mike Lee (R-UT), even provide emergency aid from natural disasters, and so forth. All subsumed under the authority to spend for the general welfare.

This raises a couple of interesting questions.

First off, if the very first clause of Article 1 Sec. 8 grants unlimited and unqualified authority for the federal government to do any damn thing it wants, why did the framers bother to waste ink enumerating all of those other powers? I mean, they were handwriting the thing for goodness sake. Seems to me an economy of words would have definitely been in order.

Secondly, how in the world can you square Abrams’ view of “general welfare” with James Madison’s assertion in Federalist 45 that the powers granted to the federal government are “few and defined”?

Oh yeah, you can’t.

And Madison didn’t.

In fact, the “Father of the Constitution” actually addressed this very argument.

“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.”

You can look to the ratifying conventions for those proofs. In fact, the “anti-federalists” feared that people like Abrams would come along and make the very arguments he advances. The pro-constitutionalists assured them this wouldn’t happen – that the government powers were in fact limited and defined. The states ratified the Constitution based on these assurances.

Heck, even Alexander Hamilton, who was most hostile to the concept of limiting federal power, conceded as much.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

Thanks for answering that first question for me, Alex.

Abrams’ runs into trouble because he doesn’t understand what the framers meant by “general welfare” and “common defense”. The first words of those two phrases hold the key. General and common. The phrase simply means that any tax collected must be collected to the benefit of the United States as a whole, not for partial or sectional (ie. special) interests. You know, swimming pools, health care for the elderly, and internets. (I don’t know what internets are. Ask Abrams.)

The power to pursue the things Abrams advocates lies with the states. As Madison put it:

The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.

After Abrams wields the “general welfare” clause like a sword, slashing through the ignorant misconception that the framers actually intended a federal government with limited powers, he pulls out the “necessary and proper” clause for good measure.

Otherwise known as the “necessary and proper clause”, the 18th power makes it as clear as the Supreme Court Justice’s financial disclosure rules that the Congress has the authority to enact any law to spend money in pursuit of the general welfare.

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Perhaps it’s due to my lack of an Ivy League education, but I have absolutely no idea what exactly Abrams means by this sentence, or how he arrived at his conclusion. But I do know that Thomas Jefferson made it clear enumerated powers also constrain the meaning and scope of the necessary and proper clause.

“The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated 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”

If nothing else, Abrams vividly illustrates Jefferson’s point. For what he may lack in understanding of the original Constitution he certainly makes up for in using his ingenuity to torture into a convenience many instances.

Most articles that seek to demonize the Tenth Amendment movement are so rife with logical and intellectual fallacies that even responding to them is a waste of time. However, in the case of Dan Casey, blogger for the Roanoke Times, an exception must be made.

For starters, Casey is writing in my (and Thomas Jefferson’s) home state of Virginia, and his piece, “The Whole Tenth Amendment Business is Dumb and Crazy” actually links to the Virginia Tenth Amendment Center, which I helped to found.

But, more importantly, in his article, Casey attempts to smear the brilliant men who wrote the U.S. Constitution by claiming the document doesn’t mean what they explicitly said it meant.

As James Madison might have said, there is a host of proofs that Dan Casey is dead wrong.

Like so many others before him, Casey leads his attack with a flaccid attempt to discredit the “Tenthers” (as he pejoratively calls them) by linking constitutionalism with support for slavery.

Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.

Behold straw man number one: The Tenth Amendment is code for racism. Casey is either ignorant of the fact that many Northern states used the Tenth Amendment as a justification for undermining slavery long before 1861, through their refusal to enforce the Fugitive Slave Acts, or he has chosen to ignore that inconvenient part of history. 

Either way, it doesn’t matter. Historical accuracy is not Casey’s goal. He merely intends to color his readers’ perception of Tenthers by linking them, however spuriously, with Southern slaveholders. To acknowledge the truth about the history of states’ rights in the North might disrupt his narrative of unquestioning obsequiousness to centralized power.

Casey continues:

But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.

In fact, the larger document directly contradicts the Tenthers’ argument.  That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.

It’s hard to imagine where Casey got this impression, considering that James Madison himself described the document he helped to write by saying

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.

Thomas Jefferson also knew the Tenth Amendment was more than just “a single sentence.” He called it the Constitution’s foundation: 

I consider the foundation of the Constitution as laid on this ground: 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.

It really cannot be any clearer than that. The self-serving opinions of Dan Casey and myriad federal judges notwithstanding, if the people and the states didn’t explicitly surrender a power in the Constitution, then they still retain it. Whether or not they choose to exercise it is another story.

But if federal power is limited to what is enumerated in the Constitution, Casey asks, why do we need a Bill of Rights at all?

The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.

And this is where the Tenthers’ entire argument falls apart. Because under Tenther-logic, unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.

Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.

Here Casey has a point, although not the one he thinks. He is right, the feds are automatically prohibited from doing any of the things he lists, just as they are prohibited from requiring every American to buy health insurance, based on the fact that those powers are not delegated under Article 1 Section 8.  

But, more importantly, many of the founders themselves argued against the Bill of Rights for the same reason as Casey: It should not be necessary. 

Alexander Hamilton said

…bills of rights… are not only unnecessary in the proposed constitution, but would even be dangerous. …For why declare that things shall not be done which there is no power to do? 

If there is any argument to be made against the Tenth Amendment, it is Hamilton, not Casey, who has made it.

The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself.

But, over time, activist judges and complicit politicians have turned the entire document on its head, until the only rights left to the people are those explicitly granted, while the only powers not yet claimed by government are those explicitly prohibited.

Yet Casey calls Tenthers, who only want the Constitution’s clear language enforced, ”intellectual boobs who can’t be bothered to think for themselves.” Apparently, thinking for oneself means ignoring the purpose of our founding documents, and gratefully acquiescing to federal tyranny.

Those of us who demand liberty are feared and ridiculed by weak minded men like Dan Casey who consider themselves intelligent, but are really nothing more than errand boys for the State.

As Samuel Adams once said

If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.

After reading and listening to numerous questions and comments about federalism from people on the Internet and on various talk radio shows, I’ve concluded that there is still a great deal of confusion about what exactly federalism is and what it is not.

Merriam-Webster’s dictionary defines federalism as:

“..the distribution of power in an organization (as a government) between a central authority and the constituent units — compare centralism.”

The same dictionary defines centralism as:

“..the concentration of power and control in the central authority of an organization (as a political or educational system).”

These are not perfect definitions for the purposes of this essay, but you’ll notice one thing. Neither definitions mention the 18th century American political factions that came to be commonly known as the Federalists and the Anti-Federalists. Rather, the definitions reflect a more worldwide understanding of the concept of true federalism, which favors the decentralization, rather than the consolidation of political power.

Pre-Ratification

Let me assure you that the principles of true federalism are not synonymous with the political platform of the American political party that originated in the 18th century and came to be known as the Federalists.

For example, on page 90 of his book, The Original Constitution: What it Actually Said and Meant, Robert G. Natelson points out how Alexander Hamilton, who is usually identified by most historians as a Federalist, “..did not share most of the Founders’ view that government should be strictly limited. In fact, he may have been a secret monarchist. Whether or not that was true, he certainly represented the ‘big government’ extreme on the American political spectrum of his day.”

I would call that an understatement in one sense. But either way, ask yourself, according to the definitions found in Merriam-Webster’s dictionary, would you classify Hamilton’s ideology as federalist or centralist?

Much earlier in the book’s preface Natelson defines some words whose meanings are very important if one is to understand the concept of federalism and have a meaningful discussion about our Constitution. He explains:

“The Federalists were participants in the public ratification debates who argued for adopting the Constitution. History has labeled (unfairly) their opponents as Anti-Federalists.”

So during the time of the ratification debates, perhaps it would have been more accurate and objective to refer to the two opposing camps in the debate as the Pro-Ratifiers and the Anti-Ratifiers, especially since those in favor of ratification, who came to be known as the Federalists, were anything but a homogeneous, monolithic group. In his book, The Politically Incorrect Guide to the Constitution, historian Kevin Gutzman maintains that there were actually three parties at the Philadelphia Convention:

“The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who – without ever avowing admiration for the monarchical form – wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity – a truly federal, rather than national government (emphasis mine)” (pp. 22–24).

Another point that needs to be understood as well, is that those who were opposed to ratifying the Constitution were not opposed to federalism as it is correctly defined and understood around the world today. They were known as Anti-Federalists, simply because they opposed those who were incorrectly labeled Federalists, some of who were actually monarchists or nationalists. But alas, we will probably be forever stuck with the confusing and very biased terms “Federalist” and “Anti-Federalist”.

Robert Natelson points out an important fact however, about those who were pro-ratification, the so called Federalists, and those who opposed ratification, the so called Anti-Federalists:

“Certain basic political values and principles seem to have been fully accepted by Federalists and Anti-Federalists alike. The two sides differed only in the weight they gave to each, and—more importantly—on how well they thought the Constitution would promote them. Those who thought the Constitution would further those values and principles tended to be Federalists. Those who thought the Constitution subversive of those values and principles tended to be Anti-Federalists. But all agreed that the nation’s basic law should be structured to further those values and principles. They can be summarized under five heads:

(1) liberty, in the sense of Lockean natural rights,
(2) effective government,
(3) republican government,
(4) decentralization, and
(5) fiduciary government.”

Those who think of themselves today as the ideological heirs of, or who simply identify more with the so called Anti-Federalists, should always remember these five principles of government and work to promote them as a way to maximize agreement within the new states’ rights coalition that has recently emerged.

Post Ratification

But what happened to these two opposing camps after all original thirteen states finally did decide to ratify the Constitution?

Although Alexander Hamilton may have formed the Federalist Party near the end of the 18th century, a strong case can be made that Hamilton actually favored a mixed monarchy and that most of the Federalist Party’s supporters were actually nationalists. In the early 1790’s, newspapers started calling Hamilton supporters “Federalists”. Those who opposed Hamilton and supported Jefferson, usually called themselves “Republicans” and their party the “Republican Party.” Newspapers that promoted good relations with Britain, supported the Jay Treaty and favored Hamiltonian economic policies, would often refer to them as “Democrats” or “Democratic-Republicans”, in an attempt to associate them with the excesses of the French Revolution.

Looking back on the origins, development and eventual demise of the Federalists as a formal political party however, Thomas Jefferson wrote in 1822:

“An opinion prevails that there is no longer any distinction, that the republicans & Federalists are completely amalgamated but it is not so. The amalgamation is of name only, not of principle. All indeed call themselves by the name of Republicans, because that of Federalists was extinguished in the battle of New Orleans. But the truth is that finding that monarchy is a desperate wish in this country, they rally to the point which they think next best, a consolidated government. Their aim is now therefore to break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth. Hence new Republicans in Congress, preaching the doctrines of the old Federalists, and the new nick-names of Ultras and Radicals. But I trust they will fail under the new, as the old name, and that the friends of the real constitution and union will prevail against consolidation, as they have done against monarchism. I scarcely know myself which is most to be deprecated, a consolidation, or dissolution of the states. The horrors of both are beyond the reach of human foresight.”

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So let’s not allow ourselves to be confused by nick-names, old or new. Rather, we should do our best to discern the true aims of those who who were labeled as Federalists or Anti-Federalists. Likewise we should do the same with those who call themselves by the name of Republicans, or Democrats for that matter, but who often advocate the doctrines of those Jefferson described as the old Federalists, many of who actually tried to subvert the truly federal form of government established by the Constitution.

The task of patriots today is to do everything in their power to defeat the advocates of consolidated government, who would like more than anything else, to finalize Hamilton’s agenda and, “..break down the rights reserved by the constitution to the states as a bulwark against that consolidation, the fear of which produced the whole of the opposition to the constitution at its birth.”

Recently, the New York Times published on op-ed piece advocating an increase in the size of the House of Representatives. Not the chamber itself, mind you, but the number of representatives serving therein.

The co-authors, Dalton Conley and Jacqueline Stevens, assert that the House has “lost touch with the public and been overtaken by special interests.”

After pointing out that the current number of representatives — 435 — is set not by Constitutional mandate, but rather by statute, Conley and Stevens rightly present the cold, hard figures that strain the definition of “representation.”

First, perhaps one wonders how we arrived at the magic number of 435 to begin with. It is because oflaws passed by Congress in 1911 and in 1929. At the time of the debate on the bill setting the arbitrary limit on the number of representatives, one clear-thinking congressmen made the following observation:

The bill seeks to prescribe a national policy under which the membership of the House shall never exceed 435 unless Congress, by affirmative action, overturns the formula and abandons the policy enunciated by this bill. I am unalterably opposed to limiting the membership of the House to the arbitrary number of 435. Why 435? Why not 400? Why not 300? Why not 250, 450, 535, or 600? Why is this number 435 sacred? What merit is there in having a membership of 435 that we would not have if the membership were 335 or 535? There is no sanctity in the number 435 … There is absolutely no reason, philosophy, or common sense in arbitrarily fixing the membership of the House at 435 or at any other number.

The opinion piece agrees:

The result [of the law passed in 1911 that set the number of representatives at 435] is that Americans today are numerically the worst-represented group of citizens in the country’s history. The average House member speaks for about 700,000 Americans. In contrast, in 1913 he represented roughly 200,000, a ratio that today would mean a House with 1,500 members – or 5,000 if we match the ration the founders awarded themselves.

That ratio — the one established by the Constitution — is set forth in Article I, Section 2. “The Number of Representative shall not exceed one for every thirty Thousand….” The Constitutional Convention in Philadelphia in 1787 settled on this number after considering proposals for setting the ratio at one representative per every 40,000 (the original ratio reported out of Committee) and one for every 35,000. Additionally, there was some heated debate over whether the relative wealth of a state, as well as population should be a factor in the equation determining representation in the House.

Upon reading the debates of the Convention in this matter and crunching the numbers, one realizes that the issue most concerning to the Framers was not that the House would be too small, but that it would be too large. James Madison himself expressed such a worry when he wrote in the Federalist Papers, “Had every Athenian been a Socrates, every Athenian assembly would still have been a mob.”

In the article printed in the Times, the effect of statutorily fiddling with the Constitution’s math is succinctly stated:

This disparity increases the influence of lobbyists and special interests: the more constituents one has, the easier it is for money to outshine individual voices. And it means that the representatives have a harder time connecting with the people back in their districts.

Well said. There is strong historical support for this theory, as well. Madison similarly expressed the need for constituents to feel connected to their representatives to the national legislature. In Federalist No. 57 he wrote,

The house of representatives . ..can make no law which will not have its full operation on themselves and their friends, as well as the great mass of society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interest, and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.

And in another Federalist letter:

The members of the legislative department … are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society…they are more immediately the confidential guardians of their rights and liberties.

For at least a decade, scores of respected journalists, political scientists, and commentators have been calling for a repeal of the Reapportionment Act of 1929 that capped the size of the House at 435. In a November 2001 article printed in The Hill, Matthew Cossolotto muses:

What’s going on here? After all, the framers of the Constitution envisioned that the House would grow in size along with the country’s population. This was supposed to take place every 10 years as a party of the reapportionment process following each decennial census.

He’s right. James Madison participated in that debate and wrote, “I take for granted…that the number of representatives will be augmented from time to time in the manner provided by the Constitution.”

In his “Common Sense” column, Paul Jacobs made a point that was at once cogent, clever, and condemning:

Are career politicians likely to chop their own personal power to do what’s best for the country and the institution of Congress? Nope. But they do talk a lot about taking the big money out of politics. Well, if they’re serious, this is one way to do it without destroying the First Amendment and handing incumbents power to regulate their opponents.

Again, well said. To a man (and woman), nearly every Tea Party-supported Congressmen promised to take America back from special interest while restoring the First Amendment’s guarantee of free speech, particularly the right to express oneself by providing financial support to candidate in an amount they, and not the Congress or Supreme Court, deem sufficient.

In what is perhaps the most laudable espousal of a breaking of the 435 seal by a pundit, George Will put a very fine point on the topic. Praising the notion of how a larger House of Representatives will likely serve as a disincentive to those who seek office for their own aggrandizement.

Critics will say, correctly, that the House chamber cannot seat 1,000 members, that it would be crowded and uncomfortable, that office space would be so severely rationed that staffs would have to be trimmed, so the House, and therefore, Congress, could not do very much. Sensible people would be dry-eyed about such conditions, which would encourage representatives not to tarry here.

The concept of subtraction by addition is a difficult one to comprehend, perhaps. That is to say, no one who flies the flag of the Constitution advocates an increase in the size of government. However, there is a possibility that by removing the 435 ceiling and requiring representatives to reduce staff and take a significant pay cut (so as not to increase by one cent the amount of money spent on Congressional salaries and staff) a lifetime spent on the banks of the Potomac might not be so alluring and the increased turnover rate will be philosophically pleasing to those of a Jeffersonian bent who long for a “revolution” every couple of decades.

Finally, there is an organization dedicated to increasing awareness of the deracination of representatives from the represented. Thirty-thousand.org provides research and commentary on reasons for repeal of the Reapportionment Act of 1929. Primarily, of course, their documents focus on the lack of true representation in a body so detached from the legitimate fount of power.

The diverse views and values of the American people are currently being homogenized within super-sized political districts resulting in the election of politicians rather than Representatives. These elected politicians rarely represent or champion clearly defined principles; instead, many function as career conciliators who can derive greater success by serving the special interest groups than by bravely advancing principles.

In contrast, in a larger House the diverse views and values of the American people will find full expression through their Representatives. The House will return to being a people’s House in which the diverse interests and concerns of the American people can be openly championed. Of course, that does not mean that everyone’s positions will prevail; that can never happen, nor should it. However, you will at least hear one or more Representatives earnestly and unambiguously advocating your view (whatever that is). Perhaps in being heard, it will affect the outcome of the matter under consideration. Or perhaps it will not change the outcome at all but, at least, it will have been clearly articulated. Just as importantly, having been competently advocated in that eminent forum, the views expressed may eventually change the minds of others.

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Support for this movement among Constitutionalists is growing. The inertia it is experiencing makes sense as Americans committed to restoring the sovereignty of states should have an affinity for such a cause, as a likely effect of successfully repealing the current cap would be strengthening of the ties that should rightfully bind congressmen to constituents. Decreasing the size of districts makes congressmen more answerable to a smaller number of voters, thus those representatives become more apt to protect the sovereignty of the states from which they are sent as they are taught that it is the liberty of those states from which the federal government they seek to serve derives its powers.

Interested readers should peruse this article from the Daily Paul (a website dedicated to promoting the principles espoused by Congressman Ron Paul), as well as the interview of Mises Institute senior fellow, Dr. Mark Thornton posted on lewrockwell.com.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author.