As resistance to Madison's federal power-grab spread -- and as states elected delegates to ratifying conventions -- Madison feared that his constitutional masterwork 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 -- began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.
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. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.
For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by the Commerce Clause.
"[T]he union will be daily facilitated by new improvements," Madison wrote...
"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."
What Madison demonstrated in No. 14 was 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.
Twisting the Facts
But today's Right will never accept facts and reason if they go against a desired propaganda theme. The outcome comes first and the rationale is assembled later to support the desired conclusion. Then, the faux history is packaged and distributed through the Right's multi-billion-dollar media infrastructure.
Thus, many Americans think they are defending the nation's founding principles when they buy tri-corner hats at a costume store, unfurl their "Don't Tread on Me" flags, and denounce the evils of "guv-mint." They insist that the last thing the Founders would permit would be a "mandate" to buy a private product.
However, the Right again shuns history, such as the fact that the Second Congress, which included Madison and many other Founders, passed the Militia Acts mandating that every white male of military age must purchase a musket and related supplies. The law was signed by George Washington, another Founder. [See Consortiumnews.com's "The Founders' Musket Mandate."]
In striking down the Commerce Clause as a justification for the Affordable Care Act, Roberts also parroted the Right's propaganda line that it is not commerce when an American chooses not to buy health insurance. However, that ignores the fact that virtually every American is involved in the commerce of medicine from birth and reenters that "market" periodically, especially near the end of life.
The failure of some people to obtain health insurance, to essentially choose to self-insure, is still part of the larger commerce of medicine, which operates across state lines and thus is within the congressional power to regulate interstate commerce.
Yet, Roberts joined his right-wing colleagues in saying that the Commerce Clause only allows regulation of "existing commercial activity" and that the insurance mandate "compels individuals to become active in commerce by purchasing a product," a principle that Roberts said could lead the federal government to require other mandatory purchases.
However, Justice Ruth Bader Ginsburg, writing for the four more liberal justices, noted the fallacy of Roberts's argument. "Unlike the market for almost any other product or service," she wrote, "the market for medical care is one in which all individuals inevitably participate."
In the end, Roberts found a way to square his right-wing ideology with his concern that a five-to-four partisan vote to strike down a major piece of social legislation -- for the first time since the 1930s -- would damage public faith in the Supreme Court.
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