Antonin Scalia and the three other right-wing justices who sought to strike down health-care reform cited no less an authority on the Constitution than one of its key Framers, Alexander Hamilton, as supporting their concern about the overreach of Congress in regulating commerce.
In their angry dissent on June 28, the four wrote: "If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, 'the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.'" They footnoted Hamilton's Federalist Paper No. 33.
That sounds pretty authoritative, doesn't it? Here's Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about "Obamacare" from the distant past of 1788.
Except that Scalia and his cohorts are misleading you. 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."
Hamilton also wasn't condemning those powers, as Scalia and his friends 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, last week's dissent from Scalia and the three other right-wingers does not only apply Hamilton's comments to the wrong section of the Constitution but reverses their meaning. Hamilton was mocking those who were claiming that these clauses would be "the hideous monster."
Twisting the Framers
It is ironic indeed that Hamilton's words, countering alarmist warnings from his era's conservatives, would be distorted by this era's conservatives to spread new alarms about the powers of the Constitution.
Scalia's distortion also underscores a larger tendency on the Right to fabricate a false founding narrative that transforms key advocates for a strong central government -- the likes of Alexander Hamilton and James Madison -- into their opposites, all the better to fit with the Tea Party's fictional storyline.
Of course, Scalia's deception would be an easy sell to typical Tea Party advocates, whose certainty about their made-up history would be reinforced as they stand this Independence Day with the Framers, complete with tri-corner hats from costume shops and bright-yellow "Don't Tread on Me" flags.
Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America's chaotic health-insurance system, as a step toward a despotic scheme that would "make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."
Some Supreme Court watchers even suspect that it may have been Scalia's intemperate tone that pushed Chief Justice John Roberts from a position of initially rejecting the Affordable Care Act outright as an unconstitutional use of the Commerce Clause to supporting its constitutionality under congressional taxing powers.
The four more liberal justices endorsed the law's constitutionality under the Commerce Clause but also joined with Roberts on his tax conclusion, thus upholding the law and sending Scalia and his three right-wing cohorts -- Anthony Kennedy, Clarence Thomas and Samuel Alito -- into a further paroxysm of rage.
What becomes clear in reading the dissent is that not only do the right-wing justices misrepresent the views of the Framers regarding the Commerce Clause, these justices misunderstand a central reality of why the Framers wrote the Constitution in 1787.
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