Yes they are.

This is a complicated area, and there has been a lot of word-fudging in spinning this subject. So bear with me as we take things step by step.

*    The U.S. Constitution generally guarantees the “Privilege of the Writ of Habeas Corpus.” The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. It is a traditional way in which those held can demand a fair trial by jury in a civilian court. The writ of habeas corpus is a treasured part of our traditional liberty. Belief that the British were infringing it was one cause of the American Revolution.  (The writ is called a “privilege” rather than a “right” because it is a creation of the legal system rather than a natural right, like the right to free speech.)

*    By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.

*    By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. For example, a person charged with trying to blow up a building on behalf of a foreign power can be charged with treason. But while still merely accused, he is entitled to all the protections of due process, including a fair, public trial before a jury of his peers.

*    By the Constitution’s original meaning, habeas corpus does NOT apply if the Congress, as an incident to its war power, “suspends” the writ for a particular time and place. However, the Constitution says that Congress may “suspend” the writ only “when in cases of rebellion or invasion the public safety may require it.” Congress has not suspended the writ, and it is doubtful that occasional acts of terrorism constitute a sufficient “rebellion or invasion” to justify doing so. Even if Congress could suspend the writ, a Bill of Suspension would be a serious, much-debated measure for which Congress would have to assume direct political accountability. Political accountability is not a big priority with Congress right now.

*    Members of all belligerent armed forces (both sides) are subject to military, not civilian, law.

*    Thus, by the law of war, the executive (and the military officers under him) may incarcerate for the duration of the conflict any enemy combatants captured in the theater of war.

*    By the Constitution’s original meaning the executive has no constitutional power (without formal congressional suspension of the writ) to lock up citizens or lawful aliens apprehended outside the war theater. If accused of crime, the accused has the privilege of a jury trial in a civilian court. By the Constitution’s original meaning, this constitutional right does not apply to enemy aliens, wherever apprehended.

*    In 2008, the U.S. Supreme Court (erroneously, in my view) held that alien Guantanamo detainees have the right to habeas corpus to determine if they are really enemy combatants. Still, under this case if they are found to be enemy combatants they can go back to prison indefinitely.

Now, with that background, let’s look at the critical language of the Act, again step by step:

§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.

(b) . . A covered person under this section is any person as follows:

Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?

c) . .  The disposition of a person under the law of war . .  may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .

Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”

(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!

(e) . . . Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.

Here are the principal Supreme Court decisions the law preserves:

(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant  incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)

(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.

(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)

(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.

Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.

§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.

* * * *

Get the 2nd Edition Today!

When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.

Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .

Or is that is now changing?

The federal constitution ratified by the people of the States provided for a limited government to handle specified joint affairs of the States. The document describes itself not as “the U.S. Constitution” or the “Constitution of the United States,” but as a “Constitution FOR the United States of America.” With this in mind, read what follows in the preamble as the purposes of this instrument: “forming a more perfect Union,” “common defense,” and “general welfare.” Throughout the document “United States” is a plural (the States United) and treason against the United States consists of levying war against THEM.

As clear and simple as these facts are and have always been, grasping them seems to be beyond the abilities of presidents, congresspersons, supreme court justices, and professors of “Constitutional Law” at the most prestigious institutions.

In recent times the abuses of these people (what the Founders would have described as “usurpations” justifying rebellion) have run amuck, distorting an already wounded constitution beyond recognition. Ambition, rent-seeking, willful historical ignorance, deceit, ideology, and the lust for power (which the Founders hoped to guard against) have rendered the real constitution of our forefathers virtually null and void. This has prompted serious citizens to re-expound what the Constitution for the United States is supposed to be. There have been good books in this vein by Professors Thomas Woods, Walter K. Wood, and Kevin Gutzman, and by William J. Watkins and Judge Andrew Napolitano.

James Madison is reputed by those who don’t know any better to be the “Father of the Constitution.” In fact, Madison lost more votes than he won at Philadelphia, although he did more maneuvering and scribbling than any other delegate. In his almost half-century of post-ratification life Madison was all over the place, contradicting himself numerous times on constitutional interpretation. But Madison himself in one of his more lucid moments tells us where we should look for the meaning of the Constitution. The meaning of the Constitution, he avowed, is to be found in the understanding of those who ratified it, who alone gave what was merely a proposal all the authority it possesses.

The latest contribution to this field is The Founding Fathers Guide to the Constitution by Professor Brion McClanahan, just published by Regnery History. McClanahan’s treatment of the subject is in many ways the best, a concise, hard hitting constitutional handbook that goes right to the true source of understanding without being diverted by later commentaries and judicial opinions. What the drafters of the Constitution meant is revealed in the first place but not exclusively or even primarily by their discussions and votes, including the ideas that were voted down. (Many of those reappeared later touted as legitimate federal powers.)

So we must look for understanding at the discussions that preceded the ratification conventions and at the conventions themselves. McClanahan knows this ground thoroughly and tells us in convincing chapter and verse on each article what those who ratified the Constitution intended and, perhaps more importantly, what they did not intend.

The opponents of the Constitution feared that the document would prove an instrument for the incremental establishment of a centralized dictatorship over the people. They were right. But, as McClanahan makes clear, the proponents of the Constitution swore point by point that the powers granted were limited and no cause for alarm. These assurances persuaded some of the doubtful. Ratification would never have passed otherwise, and, as it was, it only passed with assurances that amendments would be swiftly adopted and with several States making it clear that their ratification was revocable.

The Federalist, which we see cited all the time as the key to the Constitution is speculation and was never ratified by anybody. But handicapped thinkers read Madison’s philosophical ruminations, nearly all of which have been proved superficial and wrong, and imagine themselves participating in deep thoughts about government and learning about the true Constitution. This is part of the long-established practice of treating the Constitution as something sacred handed down by divine wisdom rather than understanding it by its real history.

So in interpretation we ought to be guided by what the proponents of the Constitution plainly said it intended. This is what McClanahan elucidates point by point. If we accept what its proponents said, then those who ratified it believed that it established a limited federal power. Third-string “political philosophers” and “Constitutional scholars,” and even learned jurists, have made an icon out of The Federalist, but it is only one of many discussions of the Constitution. It was a partisan document designed to overcome the objections of New York, and was not very convincing to its audience since ratification passed in New York by the narrowest possible margin Furthermore, it discusses the Constitution as it was merely a proposal under consideration and not the Constitution as ratified by the people of the States, who made their intentions clear in the undisputable language of the 10^th Amendment.

The authors – Madison, Hamilton, and Jay – were all disappointed that the Constitution did not centralize power as much as they would have liked, yet realized what they had to say to win over the majority. On the part of Alexander Hamilton, contributions to The Federalist were outright dishonest, because once he got into power he worked to do all sorts of things that he claimed the Constitution did not authorize.

The Constitution is there. It can still be known and understood by honest citizens. As McClanahan writes, the real Constitution is a “limiting document,” not a grant of limitless power. Whether that Constitution can ever be established again is a question of political will and whatever is left in the American people of a capacity for self-government.

Clyde Wilson [send him mail] is a recovering professor. Now that he is no longer a professor of history he can at last be a real historian. He is the editor of The Papers of John C. Calhoun. His forthcoming book,Forgotten Conservatives in American History (Pelican, 2012), is co-authored by Brion McClanahan.

Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Americans — and much of the rest of the world — have been deprived of one of the most important means of establishing and maintaining a free society, namely, federalism or states’ rights. It is not just an accident that states’ rights have either been relegated to the memory hole, or denigrated as a tool of racists and other miscreants. The Jeffersonian states’-rights tradition was — and is — the key to understanding why Thomas Jefferson believed that the best government is that which governs least, and that a limited constitutional government was indeed possible.

What Are “States’ Rights”?

The idea of states’ rights is most closely associated with the political philosophy of Thomas Jefferson and his political heirs. Jefferson himself never entertained the idea that “states have rights,” as some of the less educated critics of the idea have claimed. Of course “states” don’t have rights. The essence of Jefferson’s idea is that if the people are to be the masters rather than the servants of their own government, then they must have some vehicle with which to control that government. That vehicle, in the Jeffersonian tradition, is political communities organized at the state and local level. That is how the people were to monitor, control, discipline, and even abolish, if need be, their own government.

It was Jefferson, after all, who wrote in the Declaration of Independence that government’s just powers arise only from the consent of the people, and that whenever the government becomes abusive of the peoples’ rights to life, liberty, and the pursuit of happiness it is the peoples’ dutyto abolish that government and replace it with another one. And how were the people to achieve this? They were to achieve it just as they did when they adopted the Constitution, through political conventions organized by the states. The states, after all, were considered to be independent nations just as England and France were independent nations. The Declaration of Independence referred to them specifically as “free and independent,” independent enough to raise taxes and wage war, just like any other state.

That is why the political heirs of Thomas Jefferson, mid-19th-century Southern Democrats, held statewide political conventions (and popular votes) to decide whether or not they would continue to remain in then voluntary union of the Founding Fathers. Article 7 of the US Constitution explained that the states could join (or not join) the union according to votes taken at state political conventions by representatives of the people (not state legislatures) and, in keeping with the words of the Declaration, they also had a right to vote to secede from the government and create a new one.

Jefferson was not only the author of America’s Declaration of Secession from the British Empire; he championed the idea of state nullification of unconstitutional federal laws with his Kentucky Resolutions of 1798, and also believed that the Tenth Amendment to the Constitution was the cornerstone of the entire document. He was a “strict constructionist” who believed that every effort should be made to force the central government to possess only those powers delegated to it in Article 1, Section 8. Delegated to it by the states, that is. All others are reserved to the states, respectively, and to the people under the Tenth Amendment.

States’ rights or federalism never meant that state politicians were somehow more moral, wise, or less corrupt than national politicians. The idea was always that

1. it is easier for the people to keep an eye on and control politicians the closer they are to them, and
2. a decentralized system of government consisting of numerous states provided American citizens with an escape hatch from tyrannical governments.

If Massachusetts created a state theocracy, for example, those who did not want to live under the thumb of Puritan theocrats could escape to Virginia or some other state. The idea of states’ rights was never meant by the Jeffersonians to create a “laboratory of experimentation” with government interventionism, as modern political scientists have said. That would be treating people as so many experimental rats in a cage, and that is not how Jefferson liked to think of himself.

Secession or the threat of secession was always intended as a possible means of maintaining both the American union and constitutional government. The idea was that the central government would likely only propose constitutional laws if it understood that unconstitutional laws could lead to secession or nullification. Nullification and the threat thereof were intended to have the same effect. That is why the great British historian of liberty, Lord Acton, wrote the following letter to General Robert E. Lee on November 4, 1866, seventeen months after Lee’s surrender at Appomattox:

I saw in States’ rights the only availing check upon the absolutism of the sovereign will, and secession filled me with hope, not as the destruction but as the redemption of Democracy. The institutions of your Republic [i.e., the Confederate Constitution] have not exercised on the old world the salutary and liberating influence which ought to have belonged to them, by reason of those defects and abuses of principle which the Confederate Constitution was expressly an wisely calculated to remedy. I believed that the example of that great Reform would have blessed all the races of mankind by establishing true freedom purged of the native dangers and disorders of Republics. Therefore I deemed that you were fighting the battles of our liberty, our progress, and our civilization; and I mourn for the stake which was lost at Richmond more deeply than I rejoice over that which was saved at Waterloo.

What Lord Acton is saying here is that he considered it to be a disaster for the entire world that the right of secession was abolished by the war. The 20th century would become the century of consolidated, monopolistic government in Russia, Germany, the United States, and elsewhere, and it was a disaster for humanity. Had the rights of secession and nullification remained in place, and had slavery been abolished peacefully as it had been everywhere else in the world, America would have been a counterexample of decentralized, limited government for the rest of the world.

General Lee understood this. In his December 15, 1866, response to Lord Acton he wrote,

While I have considered the preservation of the constitutional power of the General Government to be the foundation of our peace and safety at home and abroad, I yet believe that the maintenance of the rights and authority reserved to the states and to the people, not only are essential to the adjustment and balance of the general system, but the safeguard to the continuance of a free government. I consider it as the chief source of stability to our political system, whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the certain precursor of that ruin which has overwhelmed all those that have preceded it.(emphasis added)

This is all a part of America’s lost history. The advocates of centralization who were the victors in the War to Prevent Southern Independence rewrote the history of America, as the victors in war always do. This is why I am offering a new four-week online course under the Auspices of the Mises Academy entitled Freedom and Federalism: The Libertarian States’ Rights Tradition. Classes will meet beginning on Thursday, February 2. The purpose of the course is to introduce students to the libertarian or classical-liberal states’-rights tradition, and to impart to them an understanding of how such historical figures as Thomas Jefferson and Lord Acton believed that that tradition was the key to controlling “the sovereign will” and preventing democracies from turning into despotisms and tyrannies.

Thomas DiLorenzo is professor of economics at Loyola University Maryland and a member of the senior faculty of the Mises Institute. He is the author of The Real Lincoln; Lincoln Unmasked; How Capitalism Saved America; and Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution — And What It Means for Americans Today. Send him mail. See Thomas J. DiLorenzo’s article archives.

The U.S. Constitution authorizes a “convention for proposing amendments” to offer amendments for ratification (or rejection) by the states.

The mechanism has never been used (all amendments have come from Congress), and many people have been curious about how it is supposed to work. But that’s because they are unaware of the long series of interstate “proposing” conventions held during the Founding Era—each charged with suggesting answers to specified problems.

All of these conventions were meetings of state delegations (“committees”) appointed and empowered by their respective states. In addition to the famed 1787 gathering in Philadelphia, interstate conventions met in Providence, Rhode Island (1776-77 and again in 1781); Springfield, Massachusetts (1777); New Haven, Connecticut (1778); Hartford, Connecticut (1779 and 1780); Philadelphia (1780); Boston (1780); and Annapolis, Maryland (1786). It is possible that others met in Charleston in 1777 and/or 1778 and in Fredericksburg, Virginia in 1778. Attendance ranged from three states to twelve.

The protocol of those assemblies can tell us much about the Founders’ expectations for the “convention to propose amendments.” The problem is that, except for the Annapolis and 1787 Philadelphia meetings, records covering them can be hard to find. I’ve learned that even experienced archivists can have trouble locating them.

Nevertheless, by late 2010, I had managed to collect the journals (official minutes) of all of the conventions certainly held except one—the particularly interesting convention at York Town, Pennsylvania.

The York Town gathering, held between March 26 and April 3, 1777 (not to be confused with later meetings in the same town by the Continental Congress), stands out for several reasons. First, it was one of the earlier interstate conventions, and its proceedings could serve as precedents for the others. Second, it was unusual (but not unique) in that it was called by Congress rather than by one or more states. (The Constitutional Convention, for example, was not called by Congress, as widely believed, but by Virginia.) Finally, the states attending represented a big stretch of the country, ranging from Virginia to New York.

Then, just a few days ago, I found the convention’s journal. It bore the relatively uncommon name of “Minutes” rather than “Journal,” and showed up on pages 34 to 45 in a collection of old correspondence to and from the New Jersey executive council.  You can find a digital version of the collection here.

Some highlights of the York Town Convention:

* Congress called the convention on February 15, 1777 to deal with problems of price inflation. (The call is in theseventh volume of the Journals of the Continental Congress, pp. 124-25.)

* Eighteen men in six state delegations attended. They had been appointed by authorities in New York, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia.

* The delegations ranged in size from two to five, but (as was true of other interstate conventions) each state had one vote.

* Although some Founding-Era conventions included participants who are now famous, the delegates at York Town were nearly all men whose names are obscure today. Perhaps the best known was Caesar Rodney of Delaware, who signed the Declaration of Independence, served in the Continental Congress, and was President of Delaware for much of the Revolutionary War.

* They met in the York Town home of William White. As was true of other gatherings of its type, the convention selected its own officers. Lewis Burwell of Virginia was elected chairman and Thomas Ennor (not a delegate) served as clerk.

Get the 2nd Edition Today!

* The convention established a three-man Ways and Means committee to develop a price-control plan to recommend to their respective states. They later expanded the committee to six. The plan was presented, and an amendment rejected by a vote of one state to four, with the Maryland delegation divided. The plan was ultimately rejected on a 3-3 vote.

Most Founding-Era proposal conventions did, in fact, issue proposals. The York Town convention’s decision not to do so reflects a prerogative of such conventions. In later correspondence, James Madison recognized that a convention for proposing amendments would have the same prerogative.

The York Town convention’s decision not to recommend price controls was wise. As Dr. Benjamin Rush pointed out in the Continental Congress about the same time, price controls have a long record of failure. Rush predicted they would fail again, and they did so in those states, such as Connecticut and Rhode Island, that adopted them.  In fact, the Springfield Convention, meeting the following summer, acknowledged the failure and recommended repeal. And price controls have continued to fail, often with unfortunate unintended consequences, ever since.

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: www.umt.edu/law/faculty/natelson.htm.) 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.

Every once in a while I tell about one of my historical treasure hunts. Here’s another:

When the Constitution was being debated, Anti-Federalists warned that it contained insufficient safeguards against an overweening government. They asserted that some constitutional language could be twisted by unscrupulous advocates of “big government” to justify centralized federal power. The argument was not necessarily that the Constitution really authorized centralized federal power—just that its language was vulnerable to abuse by “sophistry” (a Greek term referring to superficially plausible but deceitful arguments).

One Anti-Federalist who expressed that concern wrote under the name of “Timoleon,” a fourth-century BCE Greek statesman and military hero. (The founding generation was well-educated in the Greco-Roman classics, which helps explains their political success.) The real identity of the Anti-Federalist “Timoleon” is so far unknown.

To illustrate his point about how big-government sophists could abuse the Constitution’s language, “Timoleon” wrote a fictional legal opinion, in which a future judge allowed Congress to adopt any laws it wished.

The “opinion” claimed that unlimited congressional power was merely an incident of congressional authority to “tax . . . for the general Welfare.” (”Timoleon” was a good prophet; “progressive” judges and law professors have done much the same, but have used the Commerce Clause as well as the General Welfare Clause.) An excerpt from the Timoleon “judicial opinion” appears below this post.

The opinion of Timoleon’s fictional judge contains the maxim qui dat finem dat media ad finem necessaria, which means “He who gives the end (i.e., goal) gives the means necessary to the end.” I was curious about where this maxim came from, since it does not appear in 17th or 18th century English or American law books. Eventually, I found it in the writings of Algernon Sidney, a late 17th century English republican much lionized by the American Founders.

But if it doesn’t appear in English law books, where did Sidney get it? He said it came from Hugo Grotius (1583-1645), the Dutch genius who largely created modern international law. And there is a passage vaguely reminiscent of the maxim in Grotius’s writings. But it really is too different to be the source.

Get the 2nd Edition Today!

Recently, however, I was reading a 1691 English translation of Samuel Pufendorf’s work on natural law and human duties (De Officio Hominis et Civis). Pufendorf, who lived from 1632 to 1694, was a German jurist whose book was another favorite of the American founding generation. Like most other learned Europeans of his time, Pufendorf wrote in Latin.  In the English edition I came across this passage: “…He who commands the End, must be supposed to command likewise the Means necessary to the said End.” (Book II, chapter 6).

That looked suspiciously like qui dat finem dat media ad finem necessaria, so I looked for a Latin version of Pufendorf’s book. That’s not particularly easy to find these days. When I uncovered one, I rushed to the place, and found qui jubet finem, jubere etiam censeatur media ad finem necessaria—which you can render into modern English as “who orders an end should be deemed also to order the means necessary to the end.”

Close enough. Mystery solved. Sidney really had gotten the maxim from Pufendorf, not from Grotius. But Sidney’s memory had played a trick on him. This is understandable, since Grotius and Pufendorf were easy to mix up in hindsight: Both were civilian jurists who wrote in Latin on somewhat similar subjects. Timoleon could have gotten the maxim directly from Pufendorf or from Sidney—both were popular at the time—but he probably got it from Sidney since Timoleon’s variation is exactly the same is Sidney’s.

****

This is some of what Timoleon’s fictional judge says:

By this power the right of taxing is co-extensive with the general welfare, and the general welfare is as unlimitted [sic] as actions and things are that may disturb or benefit that general welfare.  A right being given to tax for the general welfare, as necessarily includes a power of protecting, defending, and promoting it by all such laws and means as are fitted to that end; for, qui dat finem dat media ad finem necessaria, who gives the end gives the means necessary to obtain the end.  The Constitution must be so construed as not to involve an absurdity, which would clearly follow from allowing the end and denying the means.  A right of taxing for the general welfare being the highest and most important mode of providing for it, cannot be supposed to exclude inferior modes of effecting the same purpose, because the rule of law is, that, omne majus continct [sic--- should be continet] in se minus. ["Everything larger contains the lesser within itself."- RGN]

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: www.umt.edu/law/faculty/natelson.htm.) 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.

From time to time I punch holes in “progressive” myths about the Constitution and the American Founding. But conservatives and libertarians have their own myths as well.

One is that congressional authority under the Commerce Clause (I-8-3) to “regulate Commerce among the several States” permits Congress only to facilitate trade among the States—i.e., that “to regulate” means only “to make regular.” The claim is that the Commerce Clause does not empower Congress to burden or obstruct commerce—and therefore Congress has no power to ban trade in products such as obscenity, marijuana, or goods made with child labor.

This argument, like so many other constitutional claims, seems to have arisen among partisans in the 19th century, but it remains popular among some libertarians today. Its promoters observe that a major reason for the Interstate Commerce Clause was to enable Congress to smooth out barriers to trade that some states had erected against other states.

Unfortunately for us free traders, the argument is false. Congress’s power to “regulate Commerce . . . among the several States” is far wider than merely authority to make trade regular. Congress also may obstruct trade, or even ban it.

Where’s the proof?

Well, first, let’s examine Founding-Era English dictionaries. To my knowledge, not one limits its definition of “regulate” to “make regular.” In fact, of the 18 Founding-Era legal and lay dictionaries I’ve examined (counting multiple editions of the same publication as a single dictionary), NONE even includes the definition “make regular.”  Instead, definitions of “to regulate” generally include phrases such as “to direct,” “to adjust,” “to govern,” and “to determine or decide.”

Second, when you interpret a phrase in the Constitution, you have to consider not only its immediate purpose, but how people generally understood it. The phrase“regulate Commerce” is a good example. All throughout the Founding Era, Americans used those words mostly to refer to government restrictions on commerce, such as trade bans, price regulation, and prohibitory tariffs. For example, before the Revolution American colonial writers resisting Parliament’s efforts to tax them nevertheless accepted British restrictions on trade as legitimate efforts to “regulate” the trade of the empire.

Third, in the Commerce Clause the verb “regulate” has three objects, not just one: interstate, foreign, and Indian commerce. Under Founding-Era (as well as modern) rules of interpretation you should read “regulate” the same way for all three.

But a major reason for giving Congress authority to regulate foreign commerce was to enable Congress to keep out foreign goods. The idea was to encourage American manufactures and rectify an unfavorable balance of trade. And a major reason for giving Congress power to regulate the Indian trade was allow Congress to block or limit sale of certain goods to the Natives, specifically liquor and firearms.

Get the 2nd Edition Today!

So even though the Founders thought that an immediate use of the Commerce Clause would be to free up interstate trade, the Founders also gave Congress authority to obstruct it. This authority included power to burden or ban trade in selected items or from selected sources. And Congress could use that power for any reason not otherwise prohibited by the Constitution. Hence, even though the Constitution left direct governance over subjects like obscenity and marijuana to the states, the document gave Congress authority indirect power to affect such items by preventing them from crossing jurisdictional lines.

“Progressives” and their allies on the Supreme Court have interpreted congressional authority far too broadly. But this does not justify the rest of us committing the opposite error.

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: www.umt.edu/law/faculty/natelson.htm.) 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.

The schoolboy version of the American system of government centers on the three-branch structure of the Federal Government established by the ratification of the Constitution in 1788. Integral to that structure are a system of checks and balances among those three branches and the division of powers between the Federal Government and the states. The Tenth Amendment makes that federalism principle explicit.

The dirty little secrets, however, are that the division of powers disappeared long ago, and the checks and balances do not work. Instead of a decentralized, republican system in which the Federal Government bears responsibility for only a few issues, then, Americans now groan under an unlimited central government whose taxing, spending, borrowing, and printing seemingly know no limits either of law or of sense.

To read through this tome is to be struck by the unalloyed banality of both Stevens’ writing and his mind. Stevens spent thirty-four years on the Court, and yet the 282 pages in his book include a 32-page Appendix reproducing the Constitution, the signatures affixed to the Constitution, and the amendments, two pages of acknowledgements, and several blank pages. In addition, he gives thirty pages over to an extremely shallow account of the history of the Supreme Court up to the middle of the twentieth century.In light of their distended significance, Supreme Court justices now occasionally bless the rest of us with their ruminations. The latest specimen of the genre is John Stevens’ Five Chiefs: A Supreme Court Memoir.

For example, Stevens’ account of Chief Justice Roger B. Taney’s tenure as chief justice is notably brief. Its one paragraph merely summarizes the Court’s outrageous decision in Dred Scott v. Sandford (1857) and says that, “The only good thing that can be said about that case is that Abraham Lincoln’s criticism of it in his famous debates with Stephen Douglas received nationwide attention and helped get him elected president.” (p. 20)An impressive intellect might have turned the excursion through the Court’s early history to good effect. Stevens, on the other hand, seems not to recognize the ways in which events he glosses over laid the groundwork for his own career.

Yet, Stevens actually based much of his performance as an associate justice on the foundation of Dred Scott. It was after all in Dred Scott that the Court invented the idea of what scholars and judges alike now call “substantive due process.” That idea is that the Fifth Amendment’s statement that, “nor shall any person … be deprived of life, liberty, or property, without due process of law” did more than guarantee that before one could be punished, he must first be afforded all of the incidents of the traditional Anglo-American adversarial process.

No, the Fifth Amendment’s Due Process Clause was used in Dred Scott as an empty vessel into which seven entirely partisan Democratic justices could pour their desired partisan outcome: a holding that Congress could not bar slavery from the western territories. Far from merely procedural, as it seemed to be (and had always been thought to be), the Due Process Clause was substantive.

When in the 1860s Congress came to draft the Fourteenth Amendment, it inserted a clause nearly identical to the Fifth Amendment’s Due Process Clause, this time applying the requirement to the states. Beginning in the early 20^th century, federal judges used this provision as an empty vessel into which they could pour all of their favorite policy outcomes, this time making them enforceable against the states.

Stevens makes clear what he does not mean: that the outcome is consistent with the intention of the people in adopting a particular legal or constitutional provision. He provides only the assertion that one must not be guided by any such intention.Stevens in the slim portion of the book on his own career trumpets various rights-creating lines of the Court’s recent product, such as the cases in which the justices invented various sexual rights enforceable against the states, various religious rights enforceable against the states, etc. He calls some of these outcomes “correct” without ever saying how one can know which outcome is correct.

Here we find the fundamental theoretical shortcoming of the current American regime: that no one ever consented to it. As I showed in The Politically Incorrect Guide to the Constitution, federal judges long ago abandoned the notion that constitutional interpretation was about, well, interpretation. Instead, Taney-like, they use constitutional cases – and, when it comes to enforcing made-up individual rights against state governments, Taney’s Dred Scott doctrine of substantive due process – as opportunities to impose their will.

This problem was uniquely grievous in the case of Justice Stevens. As the sole Supreme Court appointee of President Gerald Ford, Stevens was the sole justice appointed by a man who had never been elected either president or vice president. Even if one accepted the legitimacy of substantive due process as a way for people indirectly elected to enforce their superior wisdom on the rest of us, then, it would still be hard to see how Ford’s appointment of Stevens could justify wide-ranging legislative behavior by Stevens.

Stevens blithely accepts that the Supreme Court is a kind of super-legislature. Indeed, Five Chiefs gives not the slightest indication that Stevens has ever considered this matter. One might wonder whether he has thought about the Constitution much at all. For example, I am certain that every student in my recently concluded undergraduate course in American Constitutional History knows that the Bill of Rights is the first ten amendments to the US Constitution. Stevens, on the other hand, refers to “the first eight amendments to the Constitution, commonly described as the Bill of Rights.” (p. 19)

No, this doubtless is not a typographical or editorial mistake. Rather, it reflects the Hamiltonian approach to federal power taken by virtually all of our ruling elite today. As James Madison and his fellows explained the Constitution, it was to create a few islets of federal power in a sea of liberty. The Bill of Rights’ purpose was to ensure that the limits on theFederal Government’s power were respected, and thus to help preserve the principle of subsidiarity so integral to the Constitution’s original structure.

Thus, the Ninth Amendment said that the list of rights earlier in the Constitution was not exclusive, and the Tenth said that all powers not given to the Federal Government by the Constitution or denied by it to the states were reserved to the states or the people. Clearly, neither of these amendments serves the purpose of Stevens and the like, whose goal is to impose their will regardless of petty issues like popular consent. They have ignored the Ninth and Tenth Amendments for so long that, like a Trotskyite of old, those amendments no longer appear in the official photos. Now, the Constitution as they understand it stands for a few small islets of liberty in a sea of power.

Stevens’ ideas thus reflect not some well-considered jurisprudential perspective, but the Common Wisdom of our Betters. Rather than burdening readers with discussion of such matters, Stevens devotes more than two pages of his book – a memoir of thirty-five years on the Supreme Court – to an explanation of the placement of the conference table in the room where justices meet to discuss pending cases. (pp. 212-14) Utter inanity.

Numerous journalists have spilled lakes of ink describing absurdly low-brow discussion in American legislative bodies. John Paul Stevens’ memoir shows why we should not assume that decision-making by unelected, unaccountable, politically connected lawyers meeting in secret in Washington is a superior alternative to parliamentary politics. If you have a low opinion of American legislators, you ought to favor less government, not government by judiciary. Come to think of it, that was the Constitution’s bias as well. At least, as it was originally understood.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776-1840 ( and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush. His latest book is James Madison and the Making of America.

Copyright © 2011 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

NOTE: Recorded at the close of Tenther Radio Episode 26, the following is a special Bill of Rights Day message from Michael Boldin. The show airs live online every Wednesday at 5pm Pacific Time here. Find us on iTunes at this link.
*******

Today is an important day in American history.  On December 15, 1791, the first ten amendments to the United States Constitution – known as the Bill of Rights – came into effect through the process of ratification by the States.

Most people have their own view of what the purpose and effect of the Bill of Rights was supposed to be.  Some think it authorizes DC to enforce a nationwide free speech zone. Others think it requires the Feds to protect the right to keep and bear arms in every nook and cranny in the country.  And others think that there must be a nationwide separation of church and state in every state, county, city and town.

To those of you who believe that federally-run education in this country has destroyed public knowledge of the Founders’ Constitution, my next comment is no shocker – all of these people are wrong.  According to the founders, that is.

THE BASICS

First, we have to understand why we even have a Constitution – and thus – a Bill of Rights.

The entire founding generation toiled under the tyranny of the King of England, a king that had no virtually no limits on his power.  He could make rules as he went, change them on a whim, and change them back. He could seize your property, your labor or your life – and you could do almost nothing about it.

Because of this, the Constitution was written to spell out the limited powers delegated to the federal government. And it was clearly understood that this government had no powers that weren’t delegated to it in the Constitution.

The original Constitution contained no Bill of Rights.  Many of the Framers felt it wasn’t necessary since the Constitution clearly enumerated the few powers delegated to the federal government.  They thought any further restrictions would be redundant.

However, some of them thought there could be misunderstandings. So a Bill of Rights was proposed – and some states ratified the Constitution only on condition that those amendments would be added, which happened a few years later.

A PREAMBLE?

Adding a preamble to a legal document was common practice at the time.  It could indentify the parties, list important facts, and explain the purpose of the document.

Many people are unaware that, like the main body of the Constitution, the Bill of Rights had a preamble too – explaining its purpose.

So what was this purpose?  No better way to answer that question than in the words of the founders themselves – the preamble to the Bill of Rights:

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…

Rob Natelson, in his book The Original Constitution explains what this means:

“Thus, some of the proposed amendments were “declaratory…clauses” (that is, rules of construction) designed to “prevent misconstruction” of the Constitution by explaining how the instrument should be interpreted.  The rest were “restrictive clauses” to prevent “abuse” of federal powers by creating external limitations curtailing those powers.” [emphasis added]

The important message here is that the Bill of Rights doesn’t apply to you, it doesn’t apply to me, it doesn’t apply to any person at all. It applies to the federal government.

NOT THE STATES? NO WAY!

Maybe it’s because most people weren’t taught that a Preamble to the Bill of Rights even existed, or maybe because they confuse the word “constitutional” with the word “good” – but it’s quite rare to find someone who doesn’t disagree with the preamble to the Bill of Rights.

Many opponents claim things like…

“The 1st Amendment is the only one that mentions just Congress, so the rest apply to everyone and not just congress.”

“The states agreed to the Bill of Rights, and combined with the Supremacy clause, that means the states can’t violate those parts of the constitution.”

While there are others, these are some of the most prominent reasons people give for – essentially – disagreeing with the Founders themselves on the Bill of Rights.

Each could use a full discussion on their own, but the important points are:

1.  The First Amendment – this was the only Amendment which specifically prohibited the making of a law.  When the Founders wrote the word “law” in the First Amendment, they meant it. And Congress was the only branch of government that was supposed to make law.  So today, while we have an executive branch that makes law through executive order, and a judicial branch that legislates from the bench; at the time of the founding it would have been absurd to include either of those branches in an Amendment preventing the making of law.  And that’s a big part of why the 1st starts with the words “Congress shall make no law…”

2.  Claiming that because the states ratified the Bill of Rights that it somehow meant each amendment applied to the states too is just bad logic.  Think of it like this – You and twelve business partners own an apartment complex.  You hire a person to manage the property, and give him some rules about how you want your property run.  He follows your rules pretty closely at first, but eventually he starts showing up at the homes of all thirteen of you.  He starts demanding that each of you follow the rules for the apartment building that you gave him – in your own homes!

Absurd?  Absolutely. Rules created by employers for their employee don’t necessarily apply to the employers too – unless specifically agreed upon in advance.  In the case of the Bill of Rights, in the Preamble the employers told the employee (the federal government, that is) that it would have new rules, not them.

And if that logic-defeating logic weren’t enough, James Madison hammered it home in his famous speech introducing the Bill of Rights.  In it Madison proposed that the Bill of Rights have three distinct restrictions on the states.

He said: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”

What happened?  Congress considered Madison’s proposal to have some of these new restrictions apply to the states.  They rejected it.

FEDERAL RESTRICTIONS

The end result?  The body of the Constitution primarily tells the federal government what it is allowed to do. The Bill of Rights tells the federal government what it is not allowed to do, such as the following non-exhaustive examples…

1. Make no law abridging freedom of speech, press, religion, or assembly.
2. Do not infringe on the right to keep and bear arms.
3. Do not “quarter” soldiers in peacetime.
4. Do not conduct unreasonable searches and seizures, and don’t issue warrants without probable cause.
5. Do not force people to testify against themselves.
6. Do not deny a speedy trial to a person accused of a crime.
7. Do not deny trial by jury to an accused person..
8. Do not impose excessive bail.
9. Don’t assume that this is an exhaustive list of rights.  Just because some are listed doesn’t mean the people don’t have others.
10. Don’t exercise any power not delegated in this Constitution.

THE LESSON

What’s the big message behind all this?

Centralization of power is always bad, even when it appears to have a good short term result.  For every time you approve of the federal government taking on a new power for things YOU approve of, you’ve just authorized your opponents to do the same for things you oppose.

That’s why every person who advocates using the federal government to make abortion illegal nationwide has just authorized the other side to make abortion legal nationwide when THEY are in power.  Get that, Rick Santorum?

And, every person who advocates forcing every state to allow marijuana to be legal has just authorized their opposition to ban it in the entire country when THEY are in power.

The same principle can be applied to just about every issue we face

Become a member and support the TAC!

DECENTRALIZATION FTW!

The system we have today puts almost all decisions about the fate of your liberty into the hands of nine unelected, unaccountable, politically-connected lawyers.  Not a good place for any society to be.

How do we fix this mess?  The first step is to stop going to the federal government to fix problems that are actually caused by the federal government itself (most are!). Doing so is not just an absurd idea, it has led us to the place we are in today.

Moving forward to the principles behind the Bill of Rights – decentralization of power – will bring you a huge step closer to liberty.  It’s an idea whose time has come.

Get the 2nd Edition Today!

by Rob Natelson

When the Constitution was written, there were specific legal rules about how one goes about interpreting constitutional phrases. Over the course of time, however, judges and commentators gradually forgot them.

In the 1980s, some argued that the courts should “return” to applying the original intent behind the Constitution—that is,what the framers (drafters) of the document intended when they wrote it.

In his 1990 best seller, The Tempting of America, Judge Robert Bork recognized that this view was not entirely correct:

Madison himself said that what mattered was the intention of the ratifying conventions. His notes of the discussions at Philadelphia are merely evidence of what informed public men at the time thought the words of the Constitution meant. Since many of them were also delegates to the various state ratifying conventions, their understanding informed the delegates in those conventions . . . what counts is what the public understood.

But this excerpt contains confusion of its own. What exactly is Judge Bork saying should prevail: “The intention of the ratifying conventions” or  “What informed public men at the time thought” or “What the public understood?”

On the same page, Bork writes:

What is the meaning of a rule the judges should not change? It is the meaning understood at the time of the law’s enactment. Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formula, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for subjective intention.

Judge Bork was right that secret (unannounced) subjective intention is not binding, but what if the ratifiers’ view of a clause was openly stated? He never fully explained why open statements should not control or why “what the ratifiers understood . . . must be taken to be what the public of the time would have understood.”

Judge Bork had good reason to be confused. During the decade before he wrote his book, authors of articles published in very prestigious legal journals had claimed that when a Founding-Era judge or lawyer construed a document, he wholly disregarded what the parties really intended—all that was important was the structure of the document and its objective meaning. Law professors and others cited these articles repeatedly and uncritically. I think Judge Bork was trying to reconcile their claims with what Madison had said.

Unfortunately, very few people bothered to check the footnotes in those articles. I was one of the few who did. I found that the authors had relied on a relatively few selected sources and sometimes had misrepresented what those sources actually said. I also found that some of their history was inaccurate.

But it was not until 2005, when I spent a semester in England, that I had access to libraries adequate for a full investigation (thanks to Oxford University and the Middle Temple). I spent much of my time leafing through a massive amount of material, learning how Founding-Era lawyers and judges actually interpreted legal documents. The answer was clear: Madison (as usual) was essentially correct.

The Founding Era touchstone for interpreting the Constitution was the subjective understanding of the ratifiers.Only if that understanding was unclear or contradictory did Founding-Era judges apply “what the public of that time would have understood the words to mean.” Judge Bork was right to the extent that original intent was useful insofar as it helped prove what the ratifiers understood or what the objective meaning was.

As often happens when one questions the prevailing wisdom, I had trouble getting my conclusions published in a leading journal. Law review editors just couldn’t believe that a professor from Montana could be right while prestigious authors writing in places like Harvard Law Review were wrong.

So after several months of frustration I withdrew the article, re-wrote it slightly, and, swallowing my distaste, gave it a far more pretentious title: The Founders’ Hermeneutic. (Hermeneutics is the study of meaning.)  Eventually, a well-regarded law journal published it. Some writers have tried to ignore it, some have admitted that is correct, and none has even attempted to rebut it.

In summary: When interpreting phrases in the Constitution, you look to how the ratifiers understood them. If the evidence on that point is lacking or contradictory, you apply the original public meaning (relying, for instance, on other legal documents and dictionaries). You can use the records of the drafting convention (”original intent”) as evidence of original understanding and original meaning.

Applying original intent, original understanding, or original meaning usually yields the same results. But sometimes not. For example, in 1787 most people could have interpreted the bans on state and federal ex post facto laws to prohibit retroactive civil laws as well as retroactive criminal laws. During the ratification process, however, the ratifiers made a public bargain to the effect that the bans would be applied only to criminal laws. This understanding appears in the ratification debates, in New York’s ratification resolutions, and in an uncontradicted comment by the leading Federalist John Dickinson. Under Founding-Era legal “hermeneutics,” that understanding is what governs.

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: www.umt.edu/law/faculty/natelson.htm.) 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.

Vanity Fair’s sophisticated approach to rescuing a drowning man is this: Lecture him about how we all need plenty of water.

The tony mag’s new attack on the Tea Party is entitled “Debt and Dumb.” But the attack shows the authors and editors at VF to be the ones either deaf or dumb: Either deaf to what the Tea Partiers are really saying, or too dumb to understand them.

The article, written for VF by Simon Johnson and James Kwak,  is the latest “progressive” effort to enlist the American Founding in their cause. Like many others, it unintentionally reveals that the authors and editors actually know very little about the Founding, and probably could care less.

The gist this time is that the Tea Party is undermining the foundations of American government by asserting that taxes are high enough and that public debt should be paid through spending cuts.

Much of the article is an account of why a federal taxing power was necessary to make the United States a viable nation. True, but how this is relevant to the Tea Party is a complete mystery. Few, if any, Tea Partiers are arguing that Congress should not have the power to tax. It’s the classic fallacy of arguing against a strawman.

The article tries to connect Tea Party protests to the 1794 Whiskey Rebellion, when Pennsylvania farmers dodged a federal tax on spirits. But as far as I can see, there are fewer verified tax cheats in the modern Tea Party than in the Obama administration.

The article dismisses the Tea Party claim that the federal government is exceeding its constitutional powers, and cites in support the career of Alexander Hamilton.

In choosing an exemplar of constitutional meaning, VF could not have made a more inept selection. Hamilton’s views were not only out of the mainstream; they were diametrically opposed to the actual constitutional settlement.

For example, at the Constitutional Convention, Hamilton urged his fellow delegates to erect a national government with an executive and senate elected for life that could “pass all laws whatsoever.” When he failed to get his way, he went home. Toward the end of the convention he returned, but confessed on the floor his “dislike of the [Constitution’s] Scheme of Govt in General,” and admitted that “No man’s ideas were more remote from the plan than his own were known to be.” His unpublished notes, apparently written shortly after the Constitution was signed, reveal him scheming for a new administration that would “triumph altogether over the state governments and reduce them into an entire subordination, dividing the large states into smaller districts.”

During the ratification battle, Hamilton repeatedly represented the new government as one of limited authority, but once the document was safely ratified he switched his story and claimed the General Welfare Clause (I-8-1) was a fount of unlimited congressional spending power. Almost none of his contemporaries bought this argument.

In short, the choice of Hamilton as constitutional exemplar merely reveals the ignorance of the authors and the editors at Vanity Fair.

Anyway, it is not the congressional taxing power that Tea Partiers object to, but its abuse. Congress has repeatedly violated two constitutional restrictions on its taxing authority: (1) that taxes be limited to funding enumerated powers of government and (2) that, within those enumerated powers, taxes fund only expenditures for the “general Welfare” rather than for the welfare of localities or special interests.

Get the 2nd Edition Today!

The authors attack “the Tea Party’s preference for default over higher taxes.” Another strawman: Even if the debt limit had not been raised, there would have been no need for the U.S. to default on sovereign debt because there was been plenty of revenue to pay it. There also was enough revenue for other constitutional functions, such as national defense and the operations of the legislative, executive, and judicial branches. What the feds would have had to cut (or at least defer payment for) were programs that were never constitutional in the first place.

Unfortunately, the folks at VF are too sophisticated to understand that taxes are like water: You need some, but too much can kill you.

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 www.umt.edu/law/faculty/natelson.htm.) 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.