by Tom Woods

NOTE: Tom Woods will be a featured speaker at Nullify Now! Los Angeles on May 28th. Get tickets here – or by calling 888-71-TICKETS


A guy named Paul O’Rourke wrote a nasty blog post today claiming that Ron Paul doesn’t know what he’s talking about when it comes to the Constitution.  I always find it funny when conventional left-liberals like O’Rourke single out Ron Paul of all people for criticism, when (here as elsewhere) he knows more about the subject than the rest of the Republican contenders put together.  (Really, Paul, you think you’d have a useful constitutional discussion with Tim Pawlenty?)  They can’t stand an anti-establishment candidate, so they focus their anger on him.  As I never tire of saying, these people want us to shut our mouths and be content with the Biden/Romney spectrum.

Here are the key points to bear in mind:

The merchant marine health-care thing is supposed to prove that Ron Paul’s view of the Constitution is wrong.  But how could it?  It is indisputable that the Constitution was sold to the people in the ratifying conventions in a particular way.  Federalists refuted expansive interpretations of the general welfare clause, brought forth by concerned Antifederalists, with reminders that the federal government would have only the powers “expressly delegated” to it (and yes, the word “expressly” was used, again and again).  Patrick Henry was one such skeptic, and he was thus reassured by Edmund Randolph and George Nicholas, no mean authorities. Thus any interpretation of the clause other than Madison’s couldn’t possibly be correct.  It is the ratifiers whose opinions count, as Madison explained, since what they believed themselves to be agreeing to is what binds us.

The fact that years later the Constitution is violated cannot undo the brute fact that that document was ratified with this particular understanding.  The word “ratifiers” appears nowhere in the O’Rourke piece.  There is a reason for that.

Jefferson said that no matter how long the British had oppressed us, the length of time of such oppression would not have legitimized it.  Indeed.

If I entered into a contract with Paul O’Rourke on the basis of a particular understanding, and then turned around and violated that understanding, first in small things and then in great, what would he say?  Would he say, “Hey, you’re violating our agreement”?  If so, I guess I could come back with, “You’re living in the past, man!  I’ve been violating that agreement for years!”

Alexander Hamilton is cited on behalf of O’Rourke’s interpretation of the general welfare clause.  Prior to ratification, as I show in my 33 Questions book, Hamilton had taken a much less expansive view of the clause.  Once the Constitution was safely ratified, he came out in favor of the position O’Rourke cites.  Does that not strike you as a bit, well, sneaky?  Why should we take Hamilton’s post-ratification view as the definitive one?  Wouldn’t it make far more sense to cite the view Hamilton actually peddled to the public at the time of ratification?

Also, why stop with adopting Hamilton’s post-ratification view of the general welfare clause?  Why not adopt Hamilton’s whole program?  We could have presidents elected for life, senators elected for life, state governors appointed by the president, etc.  Hamilton also favored enforcement of the Sedition Act.  Oh, and you know how the Sedition Act was justified?  With the general welfare clause!

Then we read about Joseph Story, who adopted Hamilton’s post-ratification view of the general welfare clause, and whose views we are urged to adopt.  We are not told that Story had opponents.  But he did.  Abel Upshur mercilessly dismantled Story in his book A Brief Enquiry into the True Nature and Character of Our Federal Government. Story’s view of the Constitution was long ago exploded as unhistorical; see James McClellan’s Joseph Story and the American Constitution: A Study in Political and Legal Thought.  His comments on the general welfare clause, written before Madison’s notes from the convention had been made public, are rooted in highly debatable inferences from the constitutional text.

Continuing with O’Rourke, why is it impossible for the Supreme Court to have been wrong in U.S. v. Butler when it held that the taxing power was not limited by the enumerated powers in Article I, Section 8?  The whole justices-as-infallible-overlords thing is a bit creepy.  Moreover, in that decision the Court overturns the Agricultural Adjustment Act on the grounds that it involved the exercise of a power not delegated to the federal government by the states.  Is O’Rourke really of the view that the federal government has no authority over agriculture?  I doubt it.  So he dissents from the most critical part of this case.  Why does he jump up and down with glee regarding one aspect of the decision and remain perfectly silent about the other?

Then to read that the Founders weren’t classical liberals and that this is just a right-wing myth, well, that’s a bit much.  Of course, the Founders were not a homogeneous blob, and some favored more power for government than others.  But O’Rourke’s insistence on calling the Constitution and Declaration “liberal,” by which he intends the modern, 21st-century, Barack Obama meaning, is beyond absurd.

O’Rourke’s ignorant comments about the words “We, the People” alone prove he is not entitled to an opinion. This is not an example of “collectivism.” The original words were “We, the States.”  This was changed by the Committee on Style, without a single dissenting vote, so it obviously did not involve a matter of substance.  “We, the People” refers to the peoples of the states — the people of Massachusetts, the people of Virginia, etc.  What is supposed to be “collectivist” about that?  No originalist denies — and indeed all of them affirm — that the U.S. was the creation of a group of separate and distinct societies.

In case you need evidence that Jefferson was indeed a classical liberal rather than a liberal in the tradition of Hillary Clinton, you can find it in the excellent new book by Marco Bassani, Liberty, State, and Union: The Political Theory of Thomas Jefferson.

In the comments section of the O’Rourke piece you can see further how confused our author is.  He thinks we have seen a major move in the direction of the free market over the past 30 years, and that this is the reason for our current problems.  If that were so, I wonder why the most free-market economists were the ones most likely to predict the crash.  Were they repudiating their own position?  Or did they see something a teensy bit non-free-market in the activities of the Federal Reserve, the government interventions into the housing market, the regulations that make it impossible to discipline management at financial firms, the prudential regulation that encouraged everyone to flock into AAA-rated MBS, etc.?

As usual, Ron Paul was right, and his snooty critics, who insist on picking on the rare non-drone in politics, dead wrong.

Thomas E. Woods, Jr. [send him mail] holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He is the author of eleven books, including the recently-released Nullification: How to Resist Federal Tyranny in the 21st Century, and the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse, and The Politically Incorrect Guide to American History. Visit his website and blog, follow him on Twitter and Facebook, and subscribe to his YouTube Channel.

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