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OpEdNews Op Eds    H3'ed 3/28/12

GOP Justices Ignore the Founders

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This article cross-posted from Consortium News

U.S. Supreme Court Justice Anthony Kennedy

The Republican partisans who control the U.S. Supreme Court appear to have no regard for the actual language of the Constitution or the intent of the Founders. Indeed, the GOP justices, in their ham-handed questions attacking health-care reform, revealed themselves as far more devoted to right-wing talking points than to the law.

Based on their behavior on Tuesday -- posturing with goofy what-if questions about Congress mandating that Americans buy broccoli, cell phones, burial insurance, etc.  -- these partisans in black robes also demonstrated their deep-seated hypocrisy.

They cast aside their supposed principles of "strict construction" and "judicial restraint" in favor of their own "legislating from the bench," second-guessing not only the Congress and Executive Branch but the Founders themselves.

If these GOP justices actually cared about the Founders' "originalist" intent, they would know that the open-ended power over interstate commerce that the Constitution grants to Congress was intended precisely for cases like the Affordable Care Act -- at times when the United States found itself at a competitive disadvantage versus its international competitors.

Any honest review of the nation's founding era would reveal that key Framers of the Constitution -- the likes of James Madison and George Washington -- were pragmatists creating a system with a strong central government that could address the nation's daunting challenges, including -- and one might say especially -- commercial ones.

That is why Madison, with Washington's strong support, inserted the Commerce Clause into the Constitution. So, the central government could devise solutions that would enhance American competitiveness and thus strengthen the young nation's independence from Europe.

For instance, Gen. Washington, who despised the weak Articles of Confederation because they allowed "sovereign" states to renege on promised funding for his troops, endorsed one of Madison's early schemes to amend the Articles to give the central government control over the nation's commerce.

"The proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure," Washington wrote about Madison's proposal. "We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be."

Though Madison failed in his bid to attach his commerce amendment to the Articles, he revived the idea when the Constitutional Convention convened in Philadelphia in 1787. Though the convention was supposed to simply propose changes to the Articles, Madison and Washington engineered the scrapping of the earlier system to be replaced with an entirely new Constitution.

There at the Beginning

On the first day of substantive debate -- May 29, 1787 -- a fellow Virginian, Edmund Randolph, presented Madison's framework. The Commerce Clause was there from the start.

Madison's convention notes recount Randolph saying that "there were many advantages, which the U. S. might acquire, which were not attainable under the confederation -- such as a productive impost [or tax] -- counteraction of the commercial regulations of other nations -- pushing of commerce ad libitum -- &c &c."

In other words, the Founders -- at their most "originalist" moment -- understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for "pushing of [American] commerce." The "ad libitum -- &c &c" notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph's point as saying "we needed a government that could co-ordinate commerce in order to compete effectively with other nations."

So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation's economic success.

After the Convention, when the proposed Constitution was under fire from Anti-Federalists who favored retaining the states-right orientation of the Articles of Confederation, Madison returned in the Federalist Papers to arguing the value of the Commerce Clause.

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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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