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Madison: Father of the Commerce Clause

By       Message Robert Parry     Permalink
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Today's Right also trumpets Madison's summation, that "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."

What the Right ignores, however, is the context of Madison's comments as he sought to tamp down the fiery opposition to the Constitution. As a skilled politician, he was engaging in the age-old practice of finessing one's opponent. After all, if Madison really thought the Articles only needed a few tweaks, why would he have insisted on throwing them out altogether? Plus, replacing toothless powers with ones with real teeth is not some inconsequential change.

Under the Constitution, for instance, printing money became the exclusive purview of the federal government, not a minor change. And, stripping the states of their "sovereignty" and "independence" meant they would not be free to secede from the Union, a very important change that the South would challenge in the Civil War.

Touting the Commerce Clause

But today's Right leaves out all this history in pursuit of a propaganda theme. The Right also ignores Madison's comments in Federalist Paper No. 45 about the Commerce Clause, which he acknowledges is a new power for the central government, although one that, he said, "few oppose, and from which no apprehensions are entertained."

Why the Right ignores this inconvenient truth should be obvious: it destroys the entire argument that Madison was a modern-day Tea Partier ahead of his time. To the Right, the Commerce Clause is the bête noire of the U.S. Constitution, yet here is Madison noting its broad support among Americans who didn't have to go to a costume shop to buy their tri-corner hats.

To cite Madison as an opponent of an activist federal government, the Right also must ignore Federalist Paper No. 14 in which Madison envisioned major construction projects under the powers granted by the Commerce Clause. Madison wrote...

"[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."

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What Madison is demonstrating in that essay is a core reality about the Founders -- that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America's ever-changing needs, not simply the challenges of the late 18th Century.

But today's Right will never accept facts and reason if they go against a desired propaganda theme. After all, the value in the Right having spent billions of dollars in building a vast media infrastructure is that the same bogus arguments can simply be repeated over and over. Indeed, that's how many right-wing operatives earn a living.

So, the real history gets discredited by calling it "liberal" or by repeating the same out-of-context quote again and again. But serious conservative scholars of the Constitution understand the document's true purpose even if they sometimes disagree with a specific act of Congress.

Silberman's Opinion

For instance, it's worth noting the legal opinion written by conservative U.S. Appeals Court senior judge Laurence Silberman in affirming the constitutionality of the Affordable Care Act, often called "Obamacare."

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On Nov. 8, 2011, Silberman, an appointee of President Ronald Reagan, explained how the law -- including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage -- fit with the Commerce Clause and prior legal precedents.

Silberman wrote in his opinion:

"We look first to the text of the Constitution. Article I, S 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.'

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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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