In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are "necessary and proper" for executing its powers and that establish federal law as "the supreme law of the land."
And Hamilton wasn't condemning those powers, as Scalia's opinion would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America's liberties. In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by "virulent invective and petulant declamation."
It is in that context that Hamilton complains that the two clauses "have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane."
In other words, Scalia and the three other right-wingers not only applied Hamilton's comments to the wrong section of the Constitution but reversed their meaning. Hamilton was mocking those who were claiming that these clauses would be "the hideous monster." [For details, see Robert Parry's America's Stolen Narrative.]
Legal Wording to Go
Though Scalia is typically hailed by the Washington press corps as a brilliant legal scholar, he really is more of an ideological hack who reaches his conclusions based on what he wants the outcome to be and then picks out some legal wording to wrap around his judicial activism.
He did the same in using the Fourteenth Amendment's "equal protection under the law" principle to prevent a recount in Florida in Election 2000 and thus hand George W. Bush the presidency. He and four other Republican justices settled on their desired outcome and then went searching for a rationalization, no matter how ludicrous. [See the book Neck Deep for details.]
One of the motivations for the five partisan justices to make Bush the president -- despite the people's electoral preference for Al Gore -- was that Bush would then appoint more right-wing Republicans to the high court and thus perpetuate their ability to redefine the Constitution.
Thus, in 2008 and 2010, the right-wing majority reversed longstanding precedents regarding the interpretation of the Second Amendment as a collective right of the states to organize militias. By a narrow 5-to-4 majority, the Republican justices made it a personal right, albeit one that could be restricted by local, state and federal laws.
In 2010, the right-wing court -- also by a 5-to-4 vote -- unleashed the power of wealthy individuals to dominate the U.S. political process through unlimited financing of TV ads and other propaganda. The underlying motivation was that right-wing billionaires could then, in essence, buy elections for Republican candidates.
So, the nation's predicament in 2013 is that the Republican practice of using sophistry and spin to control the American political/media system is deeply rooted -- in the judicial, political and media structures. Millions of Americans -- having watched too much Fox News and listened to the likes of Rush Limbaugh and Glenn Beck -- believe strongly in a faux reality and get angry when their illusions are challenged.
Of course, it's not just the Republicans and the Right that are to blame for this mess. They, after all, have been doing simply what works for them politically. It is also the fault of the Democrats, the Left and the professional news media for largely abandoning this field of battle over reality, retreating in the face of well-funded propagandists and angry right-wing activists.
Yes, there also have been cases in which some elements of the Left and the Democratic Party have opted to fight fire with fire, i.e. making up their own fact-free conspiracy theories to discredit Republicans. But the preponderance of this behavior has been on the Right.
Indeed, the emerging backlash against right-wing fantasists could represent an important turning point in the fight for the world's future. If thoughtful people will plant their flag in the firm ground of rationality and empiricism, they could create a rallying point for a new brand of politics, one based on pragmatism, realism and mutual respect.
Within such a political framework, there would still be vigorous debates over how best to address the world's problems -- including how big a role for government versus the private sector -- but those discussions would be based on facts, not nonsense. To build that future, however, rationalists must be as tough and determined as the ideologues.
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