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A "Treason" Trial for Barack Obama?

By       Message Robert Parry     Permalink
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As resistance to Madison's plan spread -- and as states elected delegates to ratifying conventions -- Madison feared that his constitutional plan would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.

So, Madison -- along with Alexander Hamilton and John Jay -- wrote a series of essays, called the Federalist Papers to counter the fierce (though generally accurate) attacks by the Anti-Federalists against the Constitution's broad assertion of federal power.

Madison's strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers.

However, Madison also made the case for the practical advantages of a stronger central government. In Federalist Paper No. 14 -- which today's Right ignores -- Madison wrote about the advantages that would accrue from the Commerce Clause...

"[T]he union will be daily facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

"The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete."

In other words, Madison was selling the idea of a public-private partnership in which the central government would play a key role building an infrastructure for the new nation. Madison's ideas are echoed today not by the Tea Partiers and the Right, but by Barack Obama.

Limited Government

Of course, the Founders did care about limited government and individual liberty (at least for white men). Many viewed a Republic under a Constitution as an important bulwark against the excesses of democracy, then a fairly untested system of governing.

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That explains the Constitution's intricate checks and balances and the six-year terms for senators, originally appointed by state legislatures. But today's Right is wrong in interpreting those checks and balances as a desire among the Framers for a gridlocked system of government that allows a minority to block action on the nation's challenges.

Nor did the Framers envision an ideologically driven Supreme Court majority altering the Constitution by fiat, as many analysts believe the current five Republican justices will do in overturning the Affordable Care Act on health-care reform.

Today's Right loves to impress its ill-informed followers with fancy phrases like "enumerated powers of the Constitution" but ignores the fact that the Commerce Clause is an enumerated power of the Constitution, granting Congress unfettered authority to regulate interstate commerce.

The Right also keeps insisting that there must be a "limiting principle" in the Commerce Clause, but the Framers included none, except for the political need to pass legislation through the two chambers and get the President's signature.

Even thoughtful conservative jurists in lower courts have agreed that the Affordable Care Act does conform to the language of the Constitution. For instance, in a Nov. 8, 2011, ruling, U.S. Appeals Court senior judge Laurence Silberman, an appointee of Ronald Reagan, wrote a legal opinion affirming the law's constitutionality...

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"We look first to the text of the Constitution. Article I, - 8, cl. 3, states: 'The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.' [Emphasis added by Silberman]

"At the time the Constitution was fashioned, to 'regulate' meant, as it does now, '[t]o adjust by rule or method,' as well as '[t]o direct.' To 'direct,' in turn, included '[t]o prescribe certain measure[s]; to mark out a certain course,' and '[t]o order; to command.'

"In other words, to 'regulate' can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term 'commerce' limited to only existing commerce. There is therefore no textual support for appellants' argument...that mandating the purchase of health insurance is unconstitutional."

As Silberman noted, there is "no textual support" in the Constitution for people to challenge the individual mandate at the heart of the Affordable Care Act.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at
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